Wednesday,

February 13, 2008

Part III

Department of
Transportation
Federal Railroad Administration

49 CFR Parts 217 and 218

Railroad Operating Rules: Program of
Operational Tests and Inspections;
Railroad Operating Practices: Handling
Equipment, Switches and Fixed Derails;
Final Rule
pwalker on PROD1PC71 with RULES3

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 8442 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Parts 217 and 218
[Docket No. FRA–2006–25267]
RIN 2130–AB76
Railroad Operating Rules: Program of
Operational Tests and Inspections;
Railroad Operating Practices: Handling
Equipment, Switches and Fixed Derails
AGENCY: Federal Railroad
Administration (FRA), DOT.
ACTION: Final rule.
SUMMARY: Human factors are the leading
cause of train accidents, accounting for
38 percent of the total in 2005. Human
factors also contribute to employee
injuries. This final rule establishes
greater accountability on the part of
railroad management for administration
of railroad programs of operational tests
and inspections, and greater
accountability on the part of railroad
supervisors and employees for
compliance with those railroad
operating rules that are responsible for
approximately half of the train accidents
related to human factors. Additionally,
this final rule will supplant Emergency
Order 24, which requires special
handling, instruction and testing of
railroad operating rules pertaining to
hand-operated main track switches in
non-signaled territory. Finally, an
appendix has been added to 49 CFR part
218 to provide guidance for remote
control locomotive operations that
utilize technology in aiding point
protection.
DATES: This regulation is effective April
14, 2008.
FOR FURTHER INFORMATION CONTACT:
Douglas H. Taylor, Staff Director,
Operating Practices Division, Office of
Safety Assurance and Compliance, FRA,
1200 New Jersey Avenue, SE., RRS–11,
Mail Stop 25, Washington, DC 20590
(telephone 202–493–6255); or Alan H.
Nagler, Senior Trial Attorney, Office of
Chief Counsel, FRA, 1200 New Jersey
Avenue, SE., RCC–11, Mail Stop 10,
Washington, DC 20590 (telephone 202–
493–6038).
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary
Information
I. Background and Authority
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II. Proceedings to Date
A. Increase in Human Factor Caused
Accidents and Noncompliance
B. Accident at Graniteville, SC and Safety
Advisory 2005–01
C. Emergency Order No. 24
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D. Secretary of Transportation’s Action
Plan for Addressing Critical Railroad
Safety Issues
E. Railroad Safety Advisory Committee
(RSAC) Overview
F. Establishment of the Railroad Operating
Rules Working Group and Development
of the NPRM
G. Development of the Final Rule
1. Summary of the Comments
2. RSAC’s Working Group Reviewed the
Comments
3. Consideration of Underlying Principles
in Emergency Order 24
4. Recognition of the Need To Improve
Railroad Programs of Operational Tests
and Inspections
III. Remote Control Operations
A. Background
B. Situational Awareness
C. Technology Aided Point Protection
IV. General Comments/Major Issues
A. Enforcement
B. Good Faith Challenge—Legal Issues
1. FRA’s Rulemaking Authority
2. FRA’s Enforcement Authority
3. Multiple Enforcement Actions
4. Anti-Retaliation Provision
C. Preemptive Effect
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
A. Executive Order 12866 and DOT
Regulatory Policies and Procedures
B. Regulatory Flexibility Act and Executive
Order 13272
C. Paperwork Reduction Act
D. Federalism Implications
E. Environmental Impact
F. Unfunded Mandates Act of 1995
G. Energy Impact
I. Background and Authority
The Federal Railroad Safety Act of
1970, as codified at 49 U.S.C. 20103,
provides that, ‘‘[t]he Secretary of
Transportation, as necessary, shall
prescribe regulations and issue orders
for every area of railroad safety
supplementing laws and regulations in
effect on October 16, 1970.’’ The
Secretary’s responsibility under this
provision and the balance of the railroad
safety laws have been delegated to the
Federal Railroad Administrator. 49 CFR
1.49(m). In the field of operating rules
and practices, FRA has traditionally
pursued a very conservative course of
regulation, relying upon the industry to
implement suitable railroad operating
rules and mandating in the broadest of
ways that employees be ‘‘instructed’’ in
their requirements and that railroads
create and administer programs of
operational tests and inspections to
verify rules compliance. This approach
was based on several factors, including
a recognition of the strong interest the
railroads have in avoiding costly
accidents and personal injuries, the
limited resources available to FRA to
directly enforce railroad operating rules,
and the apparent success of
management and employees in
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accomplishing most work in a safe
manner.
Over the years, however, it became
necessary to ‘‘Federalize’’ certain
requirements, either to remedy
shortcomings in the railroads’ rules or to
emphasize the importance of
compliance and to provide FRA a more
direct means of promoting compliance.
These actions, which in most cases were
preceded or followed by statutory
mandates, included adoption of rules
governing—
1. Blue Signal Protection for
employees working on, under or
between railroad rolling equipment (49
CFR part 218, subpart B);
2. Railroad Communications (49 CFR
part 220);
3. Prohibition of Tampering with
Safety Devices (49 CFR part 218, subpart
D); and
4. Control of Alcohol and Drug Use in
Railroad Operations (49 CFR part 219).
In addition, FRA has adopted
requirements for Qualification and
Certification of Locomotive Engineers
(49 CFR Part 240) that directly prohibit
contravention of certain specified
operating rules and practices.
FRA believes these programs of
regulation contribute positively to
railroad safety, in part because they
contribute significantly to good
discipline among affected employees.
FRA is not specifically required by
statute to issue a regulation on the
subjects covered by this final rule.
However, FRA believes that establishing
greater accountability for
implementation of sound operating
rules is necessary for safety. FRA
initiated and finalized this rulemaking
because it has recognized that human
factor train accidents comprise the
largest single category of train accident
causes and because existing regulations
have proven inadequate to achieve a
significant further reduction in their
numbers or severity. Moreover, the
current situation in the railroad
industry, which is characterized by
strong market demand, extensive hiring
of new employees, and rapid attrition of
older employees now becoming eligible
for retirement, demands a more
substantial framework of regulations to
help ensure that operational necessity
will not overwhelm systems of
safeguards relied upon to maintain good
discipline.
The theme of this final rule is
accountability. It embodies both a broad
strategy intended to promote better
administration of railroad programs and
a highly targeted strategy designed to
improve compliance with railroad
operating rules addressing three critical
areas. Within this framework, FRA has
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taken responsibility to set out certain
requirements heretofore left to private
action. FRA will be monitoring
compliance with those requirements
through appropriate inspections and
audits, and when necessary will be
assessing appropriate civil penalties to
assure compliance. Railroad
management will be held accountable
for putting in place appropriate rules,
instructions, and programs of
operational tests. Railroad supervisors
will be held accountable for doing their
part to administer operational tests and
establish appropriate expectations with
respect to rules compliance. Railroad
employees will be held accountable for
complying with specified operating
rules, and will have a right of challenge
should they be instructed to take actions
that, in good faith, they believe would
violate those rules. It is intended that
this framework of accountability
promote good discipline, prevent train
accidents, and reduce serious injuries to
railroad employees. In this
supplementary information section,
FRA provides a detailed explanation of
the growing number of accidents, the
severity of some of those accidents, the
agency’s prior actions, and a discussion
of major subjects addressed in the
proposed rule or raised by the
comments to that proposal.
II. Proceedings to Date
A. Increase in Human Factor Caused
Accidents and Noncompliance
FRA has grown steadily more
concerned over the past few years as the
frequency of human factor caused
accidents has increased. When these
accidents are reported, the reporting
railroad is required to cite the causes of
the accident. In the case of a human
factor caused accident, an employee or
employees are typically associated with
a failure to abide by one or more
railroad operating rules. Over the past
few years, FRA inspectors have
simultaneously observed a substantial
increase in noncompliance with those
railroad operating rules that are
frequently cited as the primary or
secondary causes to these types of
accidents.
Accidents caused by mishandling of
equipment, switches and derails rose
from 370 to 640 per year from the years
1997 to 2004—an increase of 42 percent.
The greatest causes of these accidents as
identified by the railroads were (1)
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switch improperly lined and (2) absence
of employee on, at or ahead of a shoving
movement. These two issues alone
account for over 60 percent of all
accidents caused annually by employees
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mishandling of equipment, switches
and derails.
A grouping of four other causes saw
steady increases from 133 per year in
1997 to 213 per year in 2004—a
cumulative increase of 37 percent; these
causes are (1) failure to control a
shoving movement, (2) switch
previously run through, (3) cars left in
the foul and (4) failure to apply or
remove a derail. Two additional causes
of accidents, (1) switch not latched or
locked and (2) car(s) shoved out and left
out of clear, were the cited cause of only
10 accidents in 1997 and 40 accidents
in 2004.
While the accident data shows
significant increases in these areas, the
data collected by FRA during
inspections suggests that the number of
accidents could easily increase at an
even greater rate. FRA inspection data
shows that noncompliance related to
mishandling of equipment, switches
and derails rose from 319 to 2,954 per
year from the years 2000 to 2004—a
nine-fold increase. The most common
areas of human factor noncompliance
were (1) employee failed to observe
switch points for obstruction before
throwing switch; (2) employee failed to
ensure all switches involved with a
movement were properly lined; (3)
employee failed to ensure switches were
latched or locked; (4) employee failed to
ensure switches were properly lined
before movement began; and (5)
employee left equipment fouling
adjacent track.
Several other related issues of
noncompliance also saw substantial
increases, although the overall number
of incidents found by FRA was lower
than the top five. These additional areas
of noncompliance are: (1) Employee left
derail improperly lined (on or off); (2)
absence of employee on, at, or ahead of
shoving movement; (3) employee failed
to ensure train or engine was stopped in
the clear; (4) employee failed to ensure
switches were properly lined after being
used; (5) employee failed to reapply
hasp before making move over switch (if
equipped); (6) employee failed to relock
the switch after use; and (7) one or more
employees failed to position themselves
so that they could constantly look in the
direction of movement.
Some noncompliance data applies
particularly to human factor mistakes
FRA noted during inspections of
operations involving remotely
controlled locomotives. FRA assigned
noncompliance codes to identify the
following problems specifically
associated with these remote control
operations: (1) Employee operated
equipment while out of operator’s range
of vision; (2) employee failed to provide
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8443
point protection, locomotive leading;
and (3) employee failed to provide point
protection, car leading. In 2004, the first
year that FRA collected data under
those codes, FRA inspectors recorded 29
instances of noncompliance with the
railroad’s operating rules underlying the
three codes. In 2005, the number of
instances of noncompliance with those
same codes recorded by FRA inspectors
increased to 92. These types of
noncompliance are continuing with
some frequency as in 2006, FRA noted
43 instances of noncompliance with
those cause codes and in the first half
of 2007, FRA has noted 23 instances.
B. Accident at Graniteville, SC and
Safety Advisory 2005–01
Although the increasing number of
human factor caused accidents
impacted the railroad industry and its
employees, a catastrophic accident that
occurred at Graniteville, South Carolina
on January 6, 2005, catapulted the issue
into the national spotlight. As the
National Transportation Safety Board
(NTSB) described in its report NTSB/
RAR–05/04, PB2005–916304 (Nov. 29,
2005), that accident occurred when
Norfolk Southern Railway Company
(NS) freight train 192, while traveling in
non-signaled territory at about 47 miles
per hour (mph), encountered an
improperly lined switch that diverted
the train from the main track onto an
industry track, where it struck an
unoccupied, parked train (NS train P22).
The collision derailed both locomotives
and 16 of the 42 freight cars of train 192,
as well as the locomotive and 1 of the
2 cars of train P22. Among the derailed
cars from train 192 were three tank cars
containing chlorine, one of which was
breached, releasing chlorine gas. The
train engineer and eight other people
died as a result of chlorine gas
inhalation. About 554 people
complaining of respiratory difficulties
were taken to local hospitals. Of these,
75 were admitted for treatment. Because
of the chlorine release, about 5,400
people within a 1-mile radius of the
derailment site were evacuated for 9 to
13 days. The property damage,
including damages to the rolling stock
and track, exceeded $6.9 million. In
2006, NS recorded expenses of $41
million related to this incident. This
burden includes property damage and
other economic losses, personal injury
and individual property damage. (It
should be noted that this figure does not
include losses for which NS was
insured, nor other costs that are
associated with the accident such as
liability incurred, increased shipping
rates, higher insurance rates and other
societal costs, i.e., expenses for non-
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railroad businesses, and expenses
incurred related to claims from this
accident.) NTSB determined that the
probable cause of the collision was the
failure of the crew of NS train P22 to
return a main track switch to the normal
position after the crew completed work
at an industry.
The crew’s failure violated railroad
operating rules but did not violate any
Federal requirement. NS Operating Rule
104, in effect at the time, placed primary
responsibility with the employee
handling the switch and other
crewmembers were secondarily
responsible if they were in place to
observe the switch’s position. NTSB/
RAR–05/04 at 8. In addition, NTSB
concluded that NS rules required a job
briefing which ‘‘would likely have
included a discussion of the switches
and specifically who was responsible
for ensuring that they were properly
positioned [and that] [h]ad such a
briefing taken place, the relining of the
switch might not have been
overlooked.’’ Id. at 44. FRA concurs that
the lack of intra-crew communication
regarding the switch’s position was
particularly significant at the time the
crew was preparing to leave the site. Id.
at 8–9.
Four days after the Graniteville
accident (and coincidentally, two days
after a similar accident at Bieber,
California with serious, but not
catastrophic consequences), FRA
responded by issuing Safety Advisory
2005–01, ‘‘Position of Switches in Non-
Signaled Territory.’’ 70 FR 2455 (Jan. 10,
2005). The issuance of a safety advisory
is an opportunity for the agency to
inform the industry and the general
public regarding a safety issue, to
articulate agency policy, and to make
recommendations. FRA explained in the
safety advisory that ‘‘[a] review of FRA’s
accident/incident data shows that,
overall, the safety of rail transportation
continues to improve. However, FRA
has particular concern that recent
accidents on Class I railroads in non-
signaled territory were caused, or
apparently caused, by the failure of
railroad employees to return manual
(hand-operated) main track switches to
their normal position, i.e., usually lined
for the main track, after use. As a result,
rather than continuing their intended
movement on the main track, trains
approaching these switches in a facing-
point direction were unexpectedly
diverted from the main track onto the
diverging route, and consequently
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derailed.’’
Safety Advisory 2005–1 strongly
urged all railroads to immediately adopt
and comply with five recommendations
that were intended to strengthen, clarify
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and re-emphasize railroad operating
rules so as to ensure that all main track
switches are returned to their normal
position after use. The
recommendations emphasized
communication both with the
dispatcher and other crewmembers.
FRA recommended that crewmembers
complete and sign a railroad-created
Switch Position Awareness Form
(SPAF). Proper completion of a SPAF
was expected to trigger specific
communication relevant to critical
elements of the tasks to be performed.
Additional training and railroad
oversight were also recommended.
C. Emergency Order No. 24
Safety Advisory 2005–1 did not have
the long-term effect that FRA hoped it
would. The Safety Advisory was
intended to allow the industry itself a
chance to clamp down on the frequency
and severity of one subset of human
factor accidents, i.e., those accidents
involving hand-operated main track
switches in non-signaled territory. FRA
credits the Safety Advisory with
contributing to a nearly six-month
respite from this type of accident, from
January 12 through July 6, 2005, but
following this respite there was a sharp
increase in serious accidents.
Three serious accidents over a 28-day
period from August 19 to September 15,
2005, were the catalyst for FRA issuing
an emergency order: Emergency Order
No. 24 (EO 24); Docket No. FRA–2005–
22796, 70 FR 61496 (Oct. 24, 2005). The
three accidents cited in EO 24 resulted
in fatal injuries to one railroad
employee, non-fatal injuries to eight
railroad employees, an evacuation of
civilians, and railroad property damage
of approximately two million dollars.
Furthermore, each of these accidents
could have been far worse, as each had
the potential for additional deaths,
injuries, property damage or
environmental damage. Two of the
accidents could have involved
catastrophic releases of hazardous
materials as these materials were
present in at least one of the train
consists that collided.
FRA is authorized to issue emergency
orders where an unsafe condition or
practice ‘‘causes an emergency situation
involving a hazard of death or personal
injury.’’ 49 U.S.C. 20104. These orders
may immediately impose ‘‘restrictions
and prohibitions * * * that may be
necessary to abate the situation.’’ Id.
EO 24 was necessary because despite
the Safety Advisory, there was
insufficient compliance with railroad
operating rules related to the operation
of hand-operated main track switches in
non-signaled territory. FRA considered
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issuing another Safety Advisory, but
that might at best only provide another
temporary respite. The issuance of EO
24 was ‘‘intended to accomplish what
the Safety Advisory could not:
implement safety practices that will
abate the emergency until FRA can
complete rulemaking.’’ 70 FR at 61498.
FRA further concluded that ‘‘reliance
solely on employee compliance with
railroad operating rules related to the
operation of hand-operated main track
switches in non-signaled territory,
without a Federal enforcement
mechanism, is inadequate to protect the
public safety.’’ 70 FR at 61499.
EO 24 is built on the foundation of
FRA’s regulations, at 49 CFR part 217,
which require each railroad to instruct
its employees on the meaning and
application of its code of operating
rules, and to periodically test its
employees to determine their level of
compliance. With regard to hand-
operated switches in non-signaled
territory, EO 24 requires that each
railroad (1) instruct its employees, (2)
allow only qualified employees to
operate and verify switches, (3) require
employees to confirm switch positions
with the dispatcher prior to releasing
the limits of a main track authority, (4)
develop a Switch Position Awareness
Form for employees to complete when
operating switches, (5) require
employees to conduct job briefings at
important intervals, (6) require intra-
crew communication of switch
positions after a switch is operated, (7)
enhance its program of operational tests
and inspections under 49 CFR part 217,
and (8) distribute copies of EO 24, and
retain proof of distribution, to all
employees affected. Minor clarifying
amendments were made to EO 24 in a
second notice, but the overarching
requirements remained unchanged from
the first notice. 70 FR 71183 (Nov. 25,
2005).
D. Secretary of Transportation’s Action
Plan for Addressing Critical Railroad
Safety Issues
Prior to the Graniteville accident, FRA
had developed and implemented
procedures to focus agency resources on
critical railroad safety issues. Such
procedures were appropriate even
though the industry’s overall safety
record had improved over the last
decade and most safety trends were
moving in the right direction. FRA
recognizes that significant train
accidents continue to occur, and the
train accident rate has not shown
substantive improvement in recent
years. Several months after the
Graniteville accident, the Secretary of
Transportation announced a National
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Rail Safety Action Plan to address this
need. FRA acknowledged in the plan
that ‘‘recent train accidents have
highlighted specific issues that need
prompt government and industry
attention.’’ Action Plan at 1 (published
on FRA’s Web site at http://
www.fra.dot.gov/).
In the plan, FRA introduced its basic
principles to address critical railroad
safety issues. One basic principle is that
FRA’s safety program is increasingly
guided by careful analysis of accident,
inspection, and other safety data.
Another basic principle is that FRA
attempts to direct both its regulatory
and compliance efforts toward those
areas involving the highest safety risks.
The plan is intended to be proactive in
that it will target the most frequent,
highest risk causes of accidents.
FRA identified ‘‘reducing human
factor accidents’’ as one of the major
areas in which the agency planned
initiatives. In fact, the plan discusses
this issue first because it constitutes the
largest category of train accidents,
accounting for 38 percent of all train
accidents over the first five years of this
decade, and human factor accidents
were growing in number at the time the
action plan was implemented.
Furthermore, FRA’s plan takes aim at
reducing human factor accidents
because in recent years most of the
serious events involving train collisions
or derailments resulting in release of
hazardous materials, or harm to rail
passengers, have been caused by human
factors or track problems.
FRA’s analysis of train accident data
has revealed that a small number of
particular kinds of human errors are
accounting for an inordinate number of
human factor accidents. For example,
the eight human factor causes involving
mishandling equipment, switches and
derails that FRA is addressing in this
final rule accounted for nearly 48
percent of all human factor accidents in
2004; these eight causes, which resulted
in accidents causing over $113 million
in damages to railroad property from
2001–2005, can be grouped into three
basic areas of railroad operations: (1)
Operating switches and derails; (2)
leaving equipment out to foul; and (3)
the failure to protect shoving or pushing
movements. Thus, this rulemaking is
meant to address nearly half of all
human factor caused accidents on all
classes of track.
Of the 118 human factor causes that
are tracked, the leading cause was
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improperly lined switches, which alone
accounted for more than 16 percent of
human factor accidents in 2004. The
next two leading causes were shoving
cars without a person on the front of the
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movement to monitor conditions ahead,
i.e., lack of point protection, and
shoving cars with point protection but
still resulting in a failure to control the
movement; these two shoving related
causes together accounted for 17.6
percent of human factor accidents in
2004. The remaining five causes
addressed in this final rule account for
nearly 14 percent of the total number of
accident causes; these causes involve
leaving cars in a position that fouls an
adjacent track, operating over a switch
previously run through, a failure to
apply or remove a derail, a failure to
latch or lock a switch, and a failure to
determine before shoving that the track
is clear ahead of the movement. The two
catch-all general causes that might be
cited when a railroad believes one or
more related causes may apply or is
unsure of the exact cause are: (1) Other
general switching rules; and (2) other
train operation/human factors.
The human factor causes that are the
central focus of this final rule are of a
type that involve noncompliance with
established railroad operating rules
related to fundamental railroad
operations. In each case, compliance
can be objectively and conclusively
determined. For example, it can be
definitively determined whether
switches are properly lined, locked,
latched or had been previously run
through. It can be determined whether
a shoving movement was made without
point protection or without the signals
or instructions necessary to control the
movement. Similarly, it can be
determined whether a car is left fouling
a track such that it is causing an unsafe
operating condition, or whether the
track is clear ahead for a shoving
movement. Finally, it can also be
determined with certainty whether there
has been a failure to apply or remove a
derail.
The top human factor causes that FRA
is choosing not to address with this final
rule are already regulated, to some
extent, or would be significantly more
difficult to regulate. For example,
several human factor causes relate to the
failure to apply a sufficient number of
hand brakes; that issue is already
covered by regulation at 49 CFR
232.103(n). Speeding issues, including
restricted speed, are regulated to
discourage clearly excessive speeding
by imposing revocation periods or civil
penalties for locomotive engineer
violators. 49 CFR 240.117(e)(2) and
240.305(a)(2). Establishing a clear rule
for regulating a train handling issue,
such as a locomotive engineer’s
improper use of an independent brake
or air brakes to prevent excess buff or
slack action, can pose difficulties as
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8445
train handling is an area where
locomotive engineers exercise
discretion. 58 FR 18982, 18992 (Apr. 9,
1993) (describing in section-by-section
analysis why FRA amended the
qualification and certification of
locomotive engineer’s rule to require
revocation only when there is a failure
to conduct certain brake tests as
opposed to the more general, original
requirement to revoke for ‘‘failure to
adhere to procedures for the safe use of
train or engine brakes.’’ 56 FR 28228,
28259 (June 19, 1991)). Likewise, the
operating conditions related to improper
coupling are too numerous to easily
address through regulation, and
determination of responsibility related
to train handling and train make-up
involves often complex technical issues
that are still subject to study. See Safe
Placement of Train Cars, Report to the
Senate Committee on Science,
Commerce and Transportation and the
House Committee on Transportation
and Infrastructure (June 2005),
published at http://www.fra.dot.gov.
Developing close call data. As part of
its mission to improve railroad safety,
FRA is sponsoring the Confidential
Close Call Reporting System
Demonstration Project to demonstrate
the effectiveness of a confidential close
call reporting system for the railroad
industry. ‘‘Close calls’’ in this context
are unsafe events that do not result in
a reportable accident but very well
could have. In other industries such as
aviation, implementation of close call
reporting systems that shield the
reporting employee from discipline (and
the employer from punitive sanctions
levied by the regulator) have
contributed to major reductions in
accidents. In March of 2005, FRA
completed an overarching memorandum
of understanding with railroad labor
organizations and railroad management
to develop pilot programs to document
close calls. Participating railroads will
be expected to develop corrective
actions to address the problems that
may be revealed. The aggregate data
may prove useful in FRA’s decision-
making concerning regulatory and other
options to promote a reduction in
human factor-caused accidents.
However, the project has not yet
produced sufficient data to consider in
this final rule.
E. Railroad Safety Advisory Committee
(RSAC) Overview
In March 1996, FRA established
RSAC, which provides a forum for
developing consensus recommendations
to FRA’s Administrator on rulemakings
and other safety program issues. The
Committee includes representation from
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all of the agency’s major customer
groups, including railroads, labor
organizations, suppliers and
manufacturers, and other interested
parties. A list of member groups follows:
American Association of Private
Railroad Car Owners (AAPRCO);
American Association of State Highway
& Transportation Officials (AASHTO);
American Public Transportation
Association (APTA);
American Short Line and Regional
Railroad Association (ASLRRA);
American Train Dispatchers Association
(ATDA);
Association of American Railroads
(AAR);
Association of Railway Museums
(ARM);
Association of State Rail Safety
Managers (ASRSM);
Brotherhood of Locomotive Engineers
and Trainmen (BLET);
Brotherhood of Maintenance of Way
Employes Division (BMWED);
Brotherhood of Railroad Signalmen
(BRS);
Federal Transit Administration (FTA)*;
High Speed Ground Transportation
Association (HSGTA);
International Association of Machinists
and Aerospace Workers;
International Brotherhood of Electrical
Workers (IBEW);
Labor Council for Latin American
Advancement (LCLAA)*;
League of Railway Industry Women*;
National Association of Railroad
Passengers (NARP);
National Association of Railway
Business Women*;
National Conference of Firemen &
Oilers;
National Railroad Construction and
Maintenance Association;
National Railroad Passenger Corporation
(Amtrak);
National Transportation Safety Board
(NTSB)*;
Railway Supply Institute (RSI);
Safe Travel America (STA);
Secretaria de Comunicaciones y
Transporte*;
Sheet Metal Workers International
Association (SMWIA);
Tourist Railway Association Inc.;
Transport Canada*;
Transport Workers Union of America
(TWU);
Transportation Communications
International Union/BRC (TCIU/BRC);
and United Transportation Union
(UTU).
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Effective May 2006, the following
additional members have been added to
the Committee:
Transportation Security
Administration*;
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American Chemistry Council;
American Petroleum Institute;
Chlorine Institute;
Fertilizer Institute; and
Institute of Makers of Explosives.
*Indicates associate, non-voting
membership.
When appropriate, FRA assigns a task
to RSAC, and after consideration and
debate, RSAC may accept or reject the
task. If the task is accepted, RSAC
establishes a working group that
possesses the appropriate expertise and
representation of interests to develop
recommendations to FRA for action on
the task. These recommendations are
developed by consensus. A working
group may establish one or more task
forces to develop facts and options on
a particular aspect of a given task. The
task force then provides that
information to the working group for
consideration. If a working group comes
to unanimous consensus on
recommendations for action, the
package is presented to the full RSAC
for a vote. If the proposal is accepted by
a simple majority of RSAC, the proposal
is formally recommended to FRA. FRA
then determines what action to take on
the recommendation. Because FRA staff
play an active role at the working group
level in discussing the issues and
options and in drafting the language of
the consensus proposal, FRA is often
favorably inclined toward the RSAC
recommendation. However, FRA is in
no way bound to follow the
recommendation, and the agency
exercises its independent judgment on
whether the recommended rule achieves
the agency’s regulatory goal, is soundly
supported, and is in accordance with
policy and legal requirements. Often,
FRA varies in some respects from the
RSAC recommendation in developing
the actual regulatory proposal or final
rule. Any such variations would be
noted and explained in the rulemaking
document issued by FRA. If the working
group or RSAC is unable to reach
consensus on recommendations for
action, FRA moves ahead to resolve the
issue through traditional rulemaking
proceedings.
F. Establishment of the Railroad
Operating Rules Working Group and
Development of the NPRM
On April 14, 2005, FRA held a Human
Factors Workshop which convened
members of RSAC for the purpose of
developing a task statement to be
presented at the next RSAC meeting.
FRA explained that current regulations
do not address compliance with the
relevant operating rules that cause the
preponderance of human factor
PO 00000 Frm 00006 Fmt 4701 Sfmt 4700
accidents. The agency expressed a
desire to standardize and adopt these
rules as Federal requirements with
greater accountability being the goal. It
was also raised that training and
qualification programs should be
included as part of the task because
employee compliance is certainly
directly related to how well employees
are instructed and tested. FRA suggested
that one area of consideration was to
improve its regulations (49 CFR part
217) which require each railroad to
instruct its employees on the meaning
and application of its code of operating
rules, and to periodically test its
employees to determine their level of
compliance. Many participants
expressed a preference for non-
regulatory action.
On May 18, 2005, the RSAC accepted
a task statement and agreed to establish
the Railroad Operating Rules Working
Group whose overall purpose was to
recommend to the full committee how
to reduce the number of human factor
caused train accidents/incidents and
related employee injuries. The working
group held eight two-day conferences,
one per month from July 2005 through
February 2006. The vast majority of the
time at these meetings involved review
of an FRA document suggesting
language that could form the basis of
proposed regulatory text.
The draft proposed rule text that FRA
developed for the working group was
the agency’s first attempt to address
several broad concerns. One, FRA set
out to propose regulations that
addressed those human factors that are
the leading cause of train accidents.
This involved analyzing the accident/
incident data, identifying the relevant
causes, identifying the relevant
operating rules and procedures, and
synthesizing those railroad rules and
procedures in clear and enforceable
language. Two, FRA’s issuance of EO 24
was intended to address the emergency
created by the mishandling of hand-
operated main track switches in non-
signaled territory that caused several
tragic accidents; however, EO 24 was
never intended to be a permanent
arrangement, and the initiation of an
informal rulemaking was necessary to
provide the public and the regulated
community an opportunity to provide
comment on preferences for a final rule.
Three, as the agency with oversight of
railroad safety, FRA was aware of both
the successes and failures of each
railroad’s program of operational tests
and inspections required pursuant to 49
CFR 217.9. The draft proposed rule text
was designed to close loopholes and
impose specific reviews to focus testing
and inspection programs on the
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operating rules that have the greatest
impact on safety.
FRA clearly benefitted from the
participation of the working group in
detailed review of railroad operating
rules and practices. The working
group’s meetings provided a meaningful
forum for interested participants to be
able to offer insight into the strengths
and weaknesses of FRA’s suggested
draft proposed rule text and related
issues. Unfortunately, the RSAC
participants were unable to reach a
consensus for making formal
recommendations prior to issuance of
the proposed rule. The working group’s
consensus was limited to an agreement
to reconvene to discuss the NPRM, and
any comments received, after the NPRM
comment period closed. Relying heavily
on items that the working group
achieved near consensus on and ideas
suggested by FRA that received support
from at least some members of the
working group, FRA published an
NPRM on October 12, 2006. 71 FR
60372.
G. Development of the Final Rule
As mentioned previously in this
preamble, FRA’s main purpose in
issuing this rule is to reduce the number
of accidents/incidents attributed to
human factor causes and this regulation
is narrowly tailored to accomplish that
goal. The correlation between these
accidents/incidents and the final rule
have been established. This final rule is
the product of FRA’s decisions
regarding the most effective way to
regulate after review and consideration
of input from both the comments filed
in the docket and the RSAC. This final
rule is also the product of FRA’s
experience with EO 24; FRA is adopting
many of its requirements and revising
others. Furthermore, this final rule
requires revisions to each railroad’s
operational testing and inspection
program to ensure that each railroad’s
officers are better qualified to conduct
tests and inspections and each railroad
is, in fact, focusing its program on the
most serious safety concerns.
1. Summary of the Comments
The NPRM specified that written
comments must be received by
December 11, 2006, and that comments
received after that date would be
considered to the extent possible
without incurring additional expense or
delay. FRA received 12 comments by
the deadline and two comments after
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the deadline. As an aid to further
discussion at a meeting of the RSAC
Operating Practices Working Group held
in early February 2007, FRA prepared
two comment summaries which have
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been added to the docket. These
documents contained the same
information but one document arranged
the comments by commenter and the
other by section commented on. The
14th comment received, i.e., the
comment of Mr. Walter C. Rockey filed
on February 5, 2007, was received too
late to include in these summary
documents, although the comment was
reviewed and considered. Thus, FRA
considered all 14 comments filed with
the docket.
The 14 commenters touched upon
nearly every section of the NPRM,
including some who made general
comments that applied to the overall
nature or approach of the NPRM. Some
of the comments are addressed in the
section of this preamble titled ‘‘IV.
General Comments/Major Issues.’’ Most
of the comments, however, were
specific to a particular proposed section
and thus it made greater sense to
address the comment in the section of
the preamble titled ‘‘V. Section-by-
Section Analysis.’’ FRA believes that it
has addressed each of the comments
made by the 14 commenters, either
directly or indirectly, and has
consequently considered all known
reasonable alternatives to the NPRM.
2. RSAC’s Working Group Reviewed the
Comments
The Railroad Operating Rules
Working Group held two multi-day
meetings (February 8–9, 2007 and April
4–5, 2007) in an attempt to achieve
consensus recommendations based on
the proposed rule and the comments
received. The RSAC participants were
able to achieve limited consensus on a
few items and those consensus items
were agreed to by the full RSAC. In the
areas where RSAC was able to achieve
a consensus recommendation, FRA
honored the principle of each
recommendation and generally sought
to carry forward the elements of the
discussion draft that had benefited from
thoughtful comment by RSAC
participants. The final rule’s text,
however, might be slightly different in
light of regulatory drafting
requirements. FRA developed a greater
appreciation for the nuances of each of
the railroad operating rules and
practices discussed; and, armed with
that additional insight, FRA has sought
to put forth a reasonable final rule that
reflects real world railroading.
FRA has noted in the section-by-
section analysis where we have adopted
an RSAC recommendation or deviated
from it. FRA also refers to comments
and suggestions made by members of
the Working Group, full RSAC, or other
commenters so as to show the origin of
PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
8447
certain issues and the nature of
discussions concerning those issues.
FRA believes these references serve to
illuminate factors it has weighed in
making its regulatory decisions, as well
as the logic behind those decisions. The
reader should keep in mind, of course,
that only the full RSAC makes
recommendations to FRA, and it is the
consensus recommendation of the full
RSAC on which FRA is acting.
However, FRA is in no way bound to
follow the recommendation, and the
agency exercises its independent
judgment on whether the
recommendations achieve the agency’s
regulatory goal, is soundly supported,
and is in accordance with policy and
legal requirements.
3. Consideration of Underlying
Principles in Emergency Order 24
EO 24 illuminated the problems
associated with mishandling of hand-
operated main track switches in non-
signaled territory. While there may be
more than one cause that contributes to
noncompliance with the operating rules,
accidents could be prevented by strict
employee compliance with those rules.
Accidents involving this type of switch
often occur when the employee
operating the switch loses focus on the
task at hand. In an effort to refocus the
attention of employees who operate
switches, EO 24’s seven sections can be
boiled down to three major components:
(1) Instruction, (2) communication, and
(3) verification through testing. FRA’s
final rule incorporates these three major
components but with a broader
application.
Instruction. It is fundamental that an
employee cannot be expected to
properly abide by operating rules
without proper instruction, especially
when those operating rules have been
amended. To that end, EO 24 provides
an outline for essential initial
instruction and periodic instruction.
Likewise, FRA is requiring enhanced
instruction, training, and examination,
i.e., qualification, for employees on the
relevant operating rules, pertaining to
handling equipment, switches and fixed
derails.
Communication. FRA agrees with the
general principle that mistakes can be
prevented or corrected by proper
communication. Communication
prevents noncompliance and accidents
because it generally is how people
working together know what each other
is doing. For example, EO 24 stressed
the importance of communication by
requiring job briefings at certain crucial
intervals: Before work is begun; each
time a work plan is changed; and at
completion of the work. Such regular
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job briefings ensure that employees
working together understand the task
they are intending to perform and
exactly what role is expected of them
and their colleagues. Through proper
job briefings, employees can prevent
some mishaps and contain others from
worsening a bad situation. For these
reasons, FRA proposes a job briefing
component to this rulemaking.
In the background section of EO 24,
FRA described a recurrent scenario of
noncompliance where a train crew’s
mistake in leaving a main track switch
lined for movement to an auxiliary track
was the last act or omission that
resulted in an accident; and yet these
types of accidents are preventable
through reliable communication of the
actual switch position. This scenario
‘‘occurs when a train crew has exclusive
authority to occupy a specific track
segment until they release it for other
movements and [yet] that train crew
goes off duty without lining and locking
a hand-operated main track switch in its
normal position.’’ 70 FR at 61497. It is
unfortunate that FRA has to clarify that
the communication be reliable and
accurately reflect the switch position,
but some accident investigations have
revealed employees whose actions
implied more of an interest in quitting
work for the day than taking the safe
route to verify a switch’s position and
whether it was properly locked. FRA’s
final rule retains EO 24’s emphasis on
intra-crew communication or intra-
roadway worker group communication.
See 70 FR at 61499–50 and § 218.105.
Perhaps the most controversial aspect
of EO 24 is the requirement that
employees operating hand-operated
main track switches in non-signaled
territory complete a Switch Position
Awareness Form (SPAF). The SPAF
requirement is controversial because it
creates a paperwork burden for
employees and railroads. Switches may
be lined and locked properly, but a
violation of EO 24 may occur for merely
failing to fill out a single component on
the form. Critics of the form may not
appreciate that FRA’s intention for
requiring a SPAF is to create a
contemporaneous communication that
reminds the employee of the importance
of properly lining and locking such
main track switches.
In the case of a train crew, the
contemporaneous communication
created by the SPAF is twofold: (1) The
SPAF itself is a written communication
that reminds the employee operating the
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switch to keep track of the switch’s
position and (2) another crewmember,
typically the locomotive engineer,
serves as a secondary reminder to the
employee operating the switch because
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that other crewmember is also required
to request information as to the switch’s
alignment. As FRA clarified in EO 24’s
second notice, it is immaterial how
crewmembers communicate, e.g.,
whether in-person, by radio, by hand
signals, or other effective means, as long
as the communication takes place. 70
FR 71186 and 71188. By requiring both
the SPAF and the intra-crew
communication, FRA is requiring some
redundancy, i.e., two communication
reminders to properly line and lock
such switches in the case of a train.
For purposes of EO 24, the paperwork
burden and the redundancy in
communication created by the
introduction of the SPAF was
acceptable. The very sharp increase in
collisions, deaths and injuries resulting
from improperly lined main track
switches required FRA to take decisive
action. Prior to EO 24, many railroads
had already adopted the use of a SPAF
voluntarily as a best practice suggested
in Safety Advisory 2005–1. However,
the inclusion of a SPAF in EO 24 does
not bind the agency to forever require it;
and the final rulemaking promulgates an
alternative approach that does not
include it. Of course, as this subpart
prescribes minimum standards and each
railroad may prescribe additional or
more stringent requirements, each
railroad has the choice to decide
whether to continue using a SPAF after
the effective date of this rule.
FRA decided not to require a SPAF in
this final rule because the
comprehensive communication
requirements contained in §§ 218.103
and 218.105, create a direct enforcement
mechanism that makes enforcement
through a SPAF redundant. For
example, the final rule includes a
requirement that all crewmembers
verbally confirm the position of a hand-
operated main track switch that was
operated by any crewmember of that
train before it leaves the location of the
switch. See § 218.105(c)(1). Likewise,
the final rule requires that upon the
expiration of exclusive track occupancy
authority for roadway workers, roadway
workers who operate hand-operated
main track switches report the position
of any such switches operated to the
roadway worker in charge. See
§ 218.103(c)(2).
NTSB also ‘‘does not believe that
* * * the use of forms [such as a SPAF]
is sufficient to prevent recurrences of
accidents such as the one at
Graniteville.’’ NTSB/RAR–05/04 at 45.
In support of this position, NTSB cites
to the example of railroads that require
train crews to record signal indications
as they are encountered en route in
order to lessen the chance that a block
PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
or other fixed signal will be missed or
misinterpreted by a crew. Meanwhile,
NTSB states that it ‘‘has investigated a
number of accidents in which such
forms, although required and used, did
not prevent crews from missing signals
and causing accidents.’’ Id.
Although NTSB does not support the
use of a SPAF, it did express agreement
with the emergency order in two
respects. That is, NTSB supported EO
24’s requirements directing that job
briefings be held at the completion of
work and that a train crewmember who
repositions a hand-operated main track
switch in non-signaled territory
communicate with the engineer
regarding the switch position. In
support of this position, NTSB explains
that ‘‘a comprehensive safety briefing
was not held before the work at
Graniteville [and] [h]ad such a briefing
been held before and, more importantly,
after the work (as required by the FRA
emergency order), the accident might
have been avoided.’’ Id. at 46. As stated
previously, FRA is retaining these two
aspects from the emergency order in its
rule.
The EO 24 requirements for
employees releasing the limits of a main
track authority in non-signaled territory
to communicate with the train
dispatcher have, for the most part,
carried over to this final rule and been
strengthened. The final rule retains the
requirement in EO 24 that an employee
releasing the limits of a main track
authority in non-signaled territory
communicate with the train dispatcher
that all hand-operated main track
switches operated have been restored to
their normal position, unless the train
dispatcher directs otherwise, but only to
the extent that the switches are at the
location where the limits are being
released. 70 FR at 61499 and
§ 218.105(d). With the elimination of the
requirement for a SPAF, it would be
difficult for an employee to recall the
condition of any particular hand-
operated main track switch operated
and there would likely be a reaction for
an employee to believe he or she left all
such switches in proper position—
without much opportunity to double-
check the condition of those faraway
switches at that time. As mentioned
previously, accidents often occur where
the limits are being released and that is
why the final rule has placed emphasis
on addressing the problem prior to
departing the train’s location. The
switches located at the point of release
of the limits should be readily
accessible for any employee who is
unsure of the condition the switch was
last left in. The final rule also adds the
requirement that the employee report
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that the switch has been locked; locking
of the main track switch should prevent
easy access to unauthorized users.
Hand-in-hand with the EO 24
requirement that the employee contact
the dispatcher to release main track
authority in non-signaled territory is the
corresponding requirement in EO 24 for
train dispatchers; that is, EO 24 requires
that the train dispatcher must also
confirm the switch positions with the
employee releasing the limits before
clearing the limits of the authority and
confirm that the SPAF was initialed as
required. The final rule also requires the
train dispatcher to verify the switch
position information with the employee
and the requirement for the dispatcher
to confirm that the switch is locked in
the intended position by repeating to
the employee releasing the limits the
report of the switch position and asking
whether that is correct. The final rule
also strengthens the current requirement
in EO 24 by requiring that the employee
then confirm this information with the
train dispatcher.
Verification through testing. The third
major component of EO 24’s
requirements involves the verification of
compliance through testing. FRA’s
regulations, at 49 CFR Part 217, require
each railroad to instruct its employees
on the meaning and application of its
code of operating rules, and to
periodically test its employees to
determine their level of compliance.
Compliance with railroad operating
rules is critical, especially when
technology does not provide a fail safe
option.
4. Recognition of the Need To Improve
Railroad Programs of Operational Tests
and Inspections
Most railroads have excellent written
programs of operational tests and
inspections, but FRA has identified
weaknesses in the oversight and
implementation of nearly all of these
programs. For example, some railroad
testing officers lack the competency to
perform operational tests and
inspections. Likewise, some railroads do
not perform operational tests that
address the root cause of human factor
accidents, while others view the
requirement as a numbers-generating
exercise, and consequently conduct
relatively few meaningful tests. That is,
while it may be important that
employees come to work with the
proper equipment (and FRA considers
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that a basic requirement which, of
course, must be satisfied), FRA’s
concern is that not enough verification
testing is occurring on the operating
rules most likely to cause accidents,
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including but not limited to rules
addressing handling of switches.
In EO 24, FRA’s verification through
testing and inspection requirements
were narrowly focused on those
operating rules involving the operation
of hand-operated main track switches in
non-signaled territory. The purpose of
this narrow focus was to create a special
obligation for only those types of rules
violations that were causing the
emergency situation. FRA still believes
compliance with these types of rules
should be verified. The final rule
replaces EO 24’s requirements and adds
requirements for verification of testing
on a broader number of operating rules
directly related to the root cause of
human factor accidents; that is, the final
rule requires testing of all the rules
related to part 218, subpart F, not just
those rules related to hand-operated
main track switches in non-signaled
territory.
The final rule also amends §§ 217.4
and 217.9 to require competency of
railroad testing officers. In FRA’s view,
it is unfathomable that railroad testing
officers would be allowed to conduct
tests and inspections without proper
instruction, on-the-job training, and
some kind of written examination or
observation to determine that the person
is qualified to do the testing; however,
Federal regulations currently do not
require that railroad testing officers be
qualified in such a manner. Railroads
should already be shouldering this
burden without Federal requirements so
we do not view this as a substantial
burden; instead, we view the
qualification of railroad testing officers
as a necessary expense of operating a
railroad.
Furthermore, railroad officers that test
for noncompliance are typically the
same officers who are in charge of
operations. In that regard, a railroad
officer, who is knowledgeable of Federal
requirements and the government’s
enforcement authority over individual
officers, should be discouraged from
ordering an employee to violate any
operating rule inconsistent with
proposed part 218, subpart F. In other
words, if all railroad testing officers on
a particular railroad are properly
qualified, it will be more difficult for
railroad officers to accept inconsistency
in the application of operating rules.
FRA is amending § 217.9 to require
railroads to focus programs of
operational tests and inspections ‘‘on
those operating rules that cause or are
likely to cause the most accidents or
incidents.’’ See § 217.9(c)(1). Except for
the smallest freight railroads, FRA is
requiring that each railroad conduct one
or more reviews of operational tests and
PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
8449
inspections that should help guide each
railroad in the implementation of its
program. The quarterly and six-month
reviews for freight railroads, as well as
the reviews for passenger railroads, in
§ 217.9(e) would formalize a best
practice from some of the largest and
safest railroads nationwide. These
reviews are intended to ensure that each
railroad is conducting tests and
inspections directed at the causes of
human factor train accidents and
employee casualties. Each program will
be specifically required to include
appropriate tests and inspections
addressing the rules dealing with
handling of switches, leaving equipment
in the clear, and protecting the point of
the shove. Structured tests or
observations permit railroads to find
employees that need additional training
or who may benefit from a reminder that
it is not acceptable to take shortcuts that
violate the operating rules.
Furthermore, the final rule’s
requirements to amend the program of
operational tests and inspections, by
emphasizing its purpose to focus on
operating rules violations that cause
accidents, should cut down on the
disparity between the few instances of
noncompliance found by many railroads
with the many instances of
noncompliance found through FRA
inspections on the same railroads (see
discussion in ‘‘Increase In Human
Factor Caused Accidents and
Noncompliance’’). While railroads have
universally done an acceptable job of
taking corrective action following an
accident, railroads have not done as
well in consistently testing for the
variety of operating rules, at a variety of
locations, and at different times of the
day, in order to meet FRA’s expectations
for an effective testing and inspection
program. Accidents and incidents of
noncompliance should be prevented by
the formalization of the process of
verification through testing and FRA’s
ability to inspect each railroad’s
program of operational tests and
inspections, as well as its records.
Finally, FRA emphasizes that it is
retaining an enforcement mechanism, as
it did in EO 24, because prior reliance
on the railroad to ensure employee
compliance with railroad operating
rules without a Federal enforcement
mechanism has repeatedly proven to be
inadequate to protect the public and
employee safety. Under current
regulations, FRA has been able to
effectively intervene in railroad
operating rules compliance issues (apart
from those already codified as
obligations under existing regulations)
only indirectly, through use of
substantial resources, and in the case of
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exceptionally pervasive noncompliance.
The system of accountability provided
for in this final rule will, by contrast,
encourage railroad management to
prevent a lessening of oversight or
decline in compliance by reviewing
safety performance in detail, assisting
individual employees to acquire habits
of work that are consistent with safety
by permitting them to challenge
directions that could cause them to cut
corners, and permitting individual FRA
inspectors to more persuasively seek
corrective action early in the process of
deteriorating rules compliance.
III. Remote Control Operations
A. Background
Remote control devices have been
used to operate locomotives at various
locations in the United States for many
years, primarily within certain
industrial sites. Railroads in Canada
have made extensive use of remote
control locomotives for more than a
decade. FRA began investigating remote
control operations in 1994 and held its
first public hearing on the subject in
February 1995 to gather information and
examine the safety issues relating to this
new technology. On July 19, 2000, FRA
held a technical conference in which all
interested parties, including rail unions,
remote control systems suppliers, and
railroad industry representatives, shared
their views and described their
experiences with remote control
operations. This meeting was extremely
beneficial to FRA in developing its
subsequent Safety Advisory.
On February 14, 2001, the FRA
published recommended guidelines for
conducting remote control locomotive
operations. See 66 FR 10340, Notice of
Safety Advisory 2001–01, Docket No.
FRA–2000–7325. By issuing these
recommendations, FRA sought to
identify a set of ‘‘best practices’’ to
guide the rail industry when
implementing this technology. As this is
an emerging technology, FRA believes
this approach serves the railroad
industry by providing flexibility to both
manufacturers designing the equipment
and to railroads in their different
operations, while reinforcing the
importance of complying with all
existing railroad safety regulations. All
of the major railroads have adopted
these recommendations, with only
slight modifications to suit their
individual requirements.
Regarding the enforcement of Federal
pwalker on PROD1PC71 with RULES3
regulations as they apply to remote
control locomotive operations, the
Safety Advisory explains that:
‘‘although compliance with this Safety
Advisory is voluntary, nothing in this
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Safety Advisory is meant to relieve a
railroad from compliance with all
existing railroad safety regulations [and]
[t]herefore, when procedures required
by regulation are cited in this Safety
Advisory, compliance is mandatory.’’
Id. at 10343. For example, the Safety
Advisory clearly states that ‘‘each
person operating an RCL [remote control
locomotive] must be certified and
qualified in accordance with 49 CFR
Part 240 [FRA’s locomotive engineer
rule] if conventional operation of a
locomotive under the same
circumstances would require
certification under that regulation.’’ Id.
at 10344.
In November 2001, all six major
railroads submitted to FRA their
training programs for remote control
operators as required by Part 240. Since
that initial filing, several railroads have
made changes to their remote control
training programs at FRA’s request. FRA
is closely monitoring this training and
making additional suggestions for
improvement on individual railroads as
they become necessary. These training
programs currently require a minimum
of two weeks classroom and hands-on
training for railroad workers who were
previously qualified on the railroad’s
operating and safety rules. Federal
regulations require that locomotive
engineers be trained and certified to
perform the most demanding type of
service they will be called upon to
perform. Thus, a remote control
operator who will only be called upon
to perform switching duties using a
remote control locomotive would not
need to be trained to operate a
locomotive on main track from the
control stand of the cab. Major railroads
are currently reviewing their remote
control operator training plans in light
of discussions with labor
representatives and FRA regarding the
requirements of these positions.
In addition to the required training,
the regulations require railroads to
conduct skills performance testing of
remote control operators that is
comparable to the testing required of
any other locomotive engineer
performing the same type of work.
Federal regulations also hold remote
control operators responsible for
compliance with the same types of
railroad operating rules and practices
that other locomotive engineers are
required to comply with in order to
retain certification. See 49 CFR 240.117.
Any alleged noncompliance triggers an
investigation and review process. If a
violation is found, the remote control
operator will be prohibited from
operating a locomotive on any railroad
in the United States for a minimum of
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15 days to a maximum of three years.
The length of the prohibition (or
revocation of the certificate) depends on
whether the person was found to have
committed other violations within the
previous three years and whether the
railroad, using its discretion,
determined that the person had
completed any necessary remedial
training.
Furthermore, FRA addressed the
current Federal locomotive inspection
requirements and the application of
those requirements to remote control
locomotive technology. For example,
the Safety Advisory states that the
remote control locomotive ‘‘system must
be included as part of the calendar day
inspection required by 49 CFR 229.21,
since this equipment becomes an
appurtenance to the locomotive.’’ 66 FR
at 10344 (emphasis added). Another
example of a mandatory requirement
mentioned in the Safety Advisory is that
the remote control locomotive ‘‘system
components that interface with the
mechanical devices of the locomotive,
e.g., air pressure monitoring devices,
pressure switches, speed sensors, etc.,
should be inspected and calibrated as
often as necessary, but not less than the
locomotive’s periodic (92-day)
inspection.’’ Id. (emphasis added); see
49 CFR 229.23. Thus, the Safety
Advisory reiterated that existing Federal
regulations require inspection of the
remote control locomotive equipment.
Although some aspects of this
proposed rule pertains to main track
operations where remote control
locomotive operations rarely occur,
most of the problems this proposal is
intended to address are found equally in
conventional and remote control
locomotive yard switching operations.
As FRA reported to Congress earlier this
year, ‘‘RCL [i.e., remote control
locomotive] and conventional train
accident rates were virtually identical
for those major railroads that made
extensive use of both types of
operations.’’ ‘‘Final Report—Safety of
Remote Control Locomotive
Operations’’ (‘‘Final Report’’) (March
2006) (published on FRA’s Web site at
http://www.fra.dot.gov/). The current
remote control locomotive technology is
best used for yard switching operations
and is primarily used for that purpose.
See Final Report at 15–17.
The final rule would continue FRA’s
policy of implementing minimum
requirements for safe remote control
locomotive operations within the
confines of railroad operating rules
having broad applicability. As
previously explained, FRA has found
existing rules adequate to accommodate
safe remote control locomotive
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operations without the need to draft a
rule narrowly focused on remote control
locomotive operations. See Docket No.
FRA–2000–8422 (found at http://
dms.dot.gov/) (denying a request for
initiation of a rulemaking to solely
address remote control locomotive
issues). That said, after identifying
certain characteristics of remote control
locomotive shoving or pushing
operations, FRA is implementing one
requirement that pertains to remote
control locomotive operations; that
requirement addresses the problem of
lack of situational awareness. See
§ 218.99(c). FRA also recognizes the
relatively new use of permanently
installed cameras in yards or at grade
crossings which permit an employee to
provide point protection without being
physically present on, at, or ahead of the
movement. Although it is possible for
this technology to be used in
conventional operations, e.g., by a
yardmaster for a train crew, we believe
it is more often used for remote control
locomotive operations. See
§ 218.99(b)(2). The following
background on these two issues should
illuminate them further.
B. Situational Awareness
In FRA’s recent report to Congress,
the agency identified the potential for a
reduction in a remote control operator’s
situational awareness as one of four
human factor issues that warrant close
attention as remote control locomotive
technology continues to evolve. See
Final Report at 24–26. A locomotive
engineer, including a remote control
operator, who is located in the cab of a
controlling locomotive has a greater
situational awareness than a remote
control operator located on the ground.
A remote control operator located on the
ground may also be more easily
distracted by conflicting movements or
other physical dangers caused by
continuously moving about the yard
than a person located in a locomotive
cab. The nature of remote control
locomotive operations can also cause
the remote control operator to be
distracted by concentrating on
switching operations, e.g., constantly
referring to the switch list, coupling and
uncoupling cars, and, pitching and
catching. Also, a remote control
operator on the ground may forget, or
may not know, the locomotive
orientation (i.e., the particular direction
the remote control locomotive is
heading) due to his or her location away
pwalker on PROD1PC71 with RULES3
from the remote control locomotive, and
thus may inadvertently initiate a
movement in the wrong direction.
Similarly, a defective or misaligned
switch could cause a movement to be
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diverted onto a connecting track
unintentionally and go unnoticed if the
remote control crewmembers are not
observing the direction of movement.
Apparently, the latter is what happened
on December 7, 2003, on the Union
Pacific Railroad in San Antonio, Texas,
when a remote control locomotive
operator, while switching, was struck
and killed by his locomotive at the west
end of UP’s East yard. The employee
had reversed one end of a crossover
switch and was walking toward the
other end of the crossover switch to line
it when he was struck from behind by
the remote control locomotive. The
employee had started the remote control
locomotive moving as he was walking
toward the other end of the crossover.
See Final Report at 90. This move was
initiated after the employee pushed a
button to realign a power-assisted
switch, but likely did not wait at the
switch machine to confirm visually that
the points had moved to the correct
position. NTSB/RAB–06/02 at 9. In
addition to lack of adequate railroad
oversight of the misaligned power-
assisted switch, NTSB concluded that
the probable cause of this accident was
the employee’s ‘‘inattentiveness to the
location of the locomotives and the
switch position.’’ NTSB/RAB–06/02 at
11. Certainly, this inattentiveness is
another way to describe a lack of
situational awareness.
As many railroads were not eager to
invest in remote control technology
until after FRA issued its Safety
Advisory 2001–01, there is limited data
and few studies completed detailing the
safety implications of remote control
operations; however, among the few
studies that have been completed,
situational awareness has arisen as a
recurring theme. For example, in a
study funded by FRA, an independently
conducted root cause analysis of six
remote control locomotive-involved
accidents/incidents that occurred in
2006, found that the loss of situational
awareness was a major factor in five of
the accidents/incidents analyzed.
Human Factors Root Cause Analysis of
Accidents/Incidents Involving Remote
Control Locomotive Operations (May
2006) (DOT/FRA/ORD–06/05)
(published on FRA’s Web site at http://
www.fra.dot.gov/downloads/Research/
ord0605.pdf). Further analysis suggests
that remote control locomotive
technology facilitated this loss of
awareness in four of these five
accidents/incidents by enabling remote
control operators to control their cuts of
cars away (i.e., remotely) from the point
of movement. Additionally, four
probable contributing factors were
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8451
related to one or more remote control
operator’s control of a movement from
a physical location away from the
remote control locomotive and/or cut of
cars. Consequently, the independent
contractor who performed the root cause
analysis identified the loss of remote
control operator situational awareness
as one of only four critical safety issues
identified. See Final Report at 85–90.
FRA also sponsored the same
independent contractor to undertake a
study based on focus group sessions
with remote control operators. These
sessions provided a forum to gather
information about operator experiences
with remote control locomotive
operations, to identify safety issues,
lessons learned, and best practices from
those who are most familiar with remote
control locomotive operations and
equipment. Focus groups also provided
a means to solicit suggestions on how to
improve remote control locomotive
operations. One of the themes identified
was that situational awareness can be
lost when the remote control operator is
not in the immediate vicinity of the
remote control locomotive. Among the
recommended practices from the focus
groups were the suggestions to
standardize operating practices and to
require remote control operators to
protect the point at all times. See Final
Report at 79–85.
The Brotherhood of Locomotive
Engineers and Trainmen (BLET)
sponsored a study by Dr. Frederick C.
Gamst, a private consultant specializing
in railroading, and Mr. George A.
Gavalla, a private consultant and former
FRA Associate Administrator for Safety.
‘‘Hazard Survey of Remote Control
Locomotive Operations on the General
System of Railroads in the United
States’’ (‘‘BLET Study’’) (The BLET
Study is available in the docket for this
NPRM). The BLET Study is based on
anecdotal information supplied by
railroad workers and officers who
voluntarily self-reported their thoughts
and experiences concerning their
interactions with remote control
operations. All of the self-reporting was
done in writing and mainly via the
Internet in its various forms of
communication (i.e., e-mails, bulletin-
boards, weblog, etc.). The study
catalogues the myriad experiences,
complaints, and ideas that were
recorded by Dr. Gamst over three years
beginning in January 2002. The
anecdotal information collected by Dr.
Gamst reflects the same general themes
identified in the focus group study
sponsored by FRA and described in the
preceding paragraph. As in FRA’s
sponsored focus group study, the
information Dr. Gamst collected is not
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 8452 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations
statistically sampled to be
representative of all remote control
operators in the U.S. or Canada. While
the main drawback to these types of
studies is that the researchers do not
attempt to validate any statements made
by employees, as participation is often
premised on the condition that
employees remain anonymous, the
collection of individual opinions and
perceptions taken as a whole are useful
in identifying problems associated with
remote control operations. Like the
FRA’s sponsored studies, the BLET’s
sponsored study also identified
perceived problems associated with a
remote control crew not observing the
direction of movement. Specifically, the
BLET study raised the issue as the
reason why a remote control operator
might keep shoving or pulling after a
movement derailed or collided with an
obstruction. Id. at 60–62.
C. Technology Aided Point Protection
The proposed rule contained a
preamble discussion regarding how
cameras and other technologies are
increasingly being installed as an
alternative to having an employee
directly observing the leading end of a
shoving or pushing movement. The
technology permits indirect observation
and is in use, mainly in yards, to
provide point protection during remote
control operations or when it would be
more efficient during some conventional
operations. In the proposed rule, FRA
explained that it is possible to set up
these cameras and monitors so that they
provide at least an equivalent level of
safety to that of an employee protecting
the point. Of course, not every operation
may be set up properly, working
properly, or provide an equivalent level
of safety. In order to facilitate the use of
such technology, the final rule would
only permit such an operation to
substitute for an employee’s direct
visual determination where the
technology provides an equivalent level
of protection to that of a direct visual
determination. See § 218.99(b)(3)(i).
Even with this clarification, the
proposed rule raised the concern
regarding whether previously published
guidance should be incorporated in the
final rule. The BRS commented that
there are too many questions regarding
the safe use of remote cameras and that
regulation is necessary to provide that
cameras cannot be used when they are
not working as intended for any reason.
FRA believes the final rule addresses
pwalker on PROD1PC71 with RULES3
BRS’s concern as the technology cannot
possibly afford an equivalent level of
protection if it is not working properly.
Furthermore, FRA has decided to
incorporate the guidance as an appendix
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to part 218. Appendix D includes
further explanation and mandatory
requirements for exercising the option
to provide point protection with the aid
of technology as permitted in
§ 218.99(b)(3)(i).
The issue of reliance on non-
crewmembers to carry out some remote
control locomotive operator crew
functions was raised in the focus group
study sponsored by FRA and
summarized in the Final Report. The
remote control operators that made up
the focus groups had indicated that
there were occasions in which a non-
crewmember, generally a yardmaster,
would provide point protection, line
switches, or check the status of a derail
for a remote control crew. When this
was allowed, several potential problems
could result. First, there is great
potential for an error in communication
or a misunderstanding between the non-
crewmember and the crewmembers
regarding the activity or status of
equipment. Further, a yardmaster who
is occupied with his or her other
responsibilities might not give the task
the attention it deserves, or could be
distracted and give an incorrect answer
to a question by a remote control
crewmember (e.g., ‘‘is the move
lined?’’). The result could be that the
task does not get completed or there is
an error in task execution. Further, the
remote control crew might not have any
alternative way of determining that
there is a problem with the point
protection provided by the non-
crewmember until it is too late. See
Final Report at 82. Similar issues were
raised in the BLET Study. BLET Study
at 44.
In response to these concerns, FRA
has specified additional requirements
for technology aided point protection to
be used by remote control locomotive
operations at highway-rail grade
crossings, pedestrian crossings, and
yard access crossings in Appendix D, II.
One, before conducting such operations,
diagnostic testing is required to
determine the suitability of the crossing
for permitting technology aided point
protection. The Crossing Diagnostic
Team shall include representatives from
the railroad, FRA, as well as the relevant
State and local governments. Two,
Appendix D specifically requires such
operations to be conducted only ‘‘at
crossings equipped with flashing lights,
gates, and constant warning time train
detection systems;’’ thus, it is clear that
such operations are not permitted where
there are passive warning systems or
only some but not all of those active
warning systems listed. Three, the safety
of such operations is enhanced by
having the remote control operator view
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the monitor and thus that has also been
added to the requirements. The fourth
and fifth requirements for such
operations are intended to ensure that
the cameras are arranged so that the
remote control locomotive operator can
accurately judge the end of the
movement’s proximity to the crossing as
well as the speed and driver behavior of
any approaching motor vehicles. Six,
the remote control locomotive operator
is required to be able to determine that
the flashing lights and gates are working
as intended either by sufficient camera
resolution or a remote health monitoring
system. The seventh and final
requirement for such operations is that
the railroad notify FRA’s Associate
Administrator for Safety in writing
when this type of protection has been
installed and activated at a crossing.
IV. General Comments/Major Issues
A. Enforcement
FRA received a variety of comments
that expressed concern about
enforcement of the rule. At the RSAC
working group meetings, the labor
organizations expressed concern that
the final rule might enable FRA to
assess civil penalties against individual
employees for noncompliance with
what were formerly just railroad
operating rules. FRA understands from
the comments and RSAC discussions
that the labor organizations would
prefer that FRA implement a process for
employees to report unsafe conditions,
such as FRA’s Confidential Close Call
Reporting System Demonstration Project
discussed in this preamble (II. D.),
rather than penalizing employees.
BMWED’s comments may have captured
the labor position best when it
expressed that there are underlying root
causes for why accidents occur and thus
FRA should exercise maximum restraint
in assessing civil penalties against
individual employees. BMWED also
requested that FRA limit enforcement to
individual railroad employees who
commit the most egregious, gross and
willful violations, and that mistakes,
human error, and poor judgment do not
rise to the level of the most egregious,
gross and willful violations.
FRA wishes to clarify some apparent
misunderstandings. For instance, there
was a general idea expressed by labor
participants in the RSAC meetings that
this final rule would be different than
the other Federal rail safety regulations
because this one specifically allows
FRA to enforce the regulation against an
individual employee. This is incorrect.
Each of FRA’s rail safety regulations
permit enforcement against any person
who violates a regulatory requirement or
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 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations
causes the violation of any requirement.
See e.g., § 217.5 and § 218.9. ‘‘Person’’ is
broadly defined and includes any
employee, regardless of whether the
employer is a railroad or not, or whether
the employee is a manager, supervisor
or other official. In other words, this
final rule is not unique to FRA’s
regulations in that it permits FRA to
take enforcement action against
individual persons for a failure to
comply including the assessment of
civil penalties if the violation is willful
or the issuance of a warning letter for a
willful or nonwillful violation or a
notice of proposed disqualification for a
willful or nonwillful violation that
demonstrates the person’s unfitness for
safety-sensitive service.
In response to BMWED’s concern that
FRA limit enforcement to individual
railroad employees who commit the
most egregious, gross and willful
violations, we note that this is very
similar to FRA’s existing enforcement
policy which we would apply to
enforcement of this final rule. In both
parts 217 and 218, FRA already states
that ‘‘[p]enalties may be assessed against
individuals only for willful violations,
and, where a grossly negligent violation
or a pattern of repeated violations has
created an imminent hazard of death or
injury to persons, or has caused death
or injury.’’ Id. FRA’s well-established
policy with regard to the assessment of
civil penalties against individuals will
apply here. See 49 CFR part 209, app.
A.
Likewise, in the NPRM, FRA
mentioned the concern that there may
be instances where an employee realizes
that he or she violated an operating rule
but is afraid of the consequences of
reporting the error—even when such
reporting would have the potential to
prevent an accident or injury to other
workers or innocent bystanders. NTSB
addressed this point in its report on the
Graniteville accident when it stated that
a ‘‘significant civil penalty may have an
unintended impact on safety under
some circumstances. That is, an
employee who, after leaving a work site,
realizes that a switch has been left
improperly lined may be made more
reluctant than in the past to
immediately report the error to train
dispatchers. The threat of the severe fine
may prompt the employee to attempt a
remedy (such as returning later to reline
the switch) before the mistake can
become known. As happened in the
September 2005 fatal collision in
pwalker on PROD1PC71 with RULES3
Shepherd, Texas, such action on the
part of the employee could contribute to
an accident that might otherwise have
been avoidable.’’ NTSB/RAR–05/04 at
46. FRA disagrees with NTSB that
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FRA’s enforcement program would have
a negative effect on an employee’s
decision to remedy a mistake. Given
FRA’s published enforcement policy, an
employee who recognizes
noncompliance and seeks to correct it
has likely not acted willfully nor been
grossly negligent. Instead, an individual
civil penalty is warranted where an
employee recognizes noncompliance
and does not act to correct it. Thus,
FRA’s enforcement policy offers
employees an incentive to self-report
noncompliance as doing so would likely
be considered a reason for FRA to
exercise its enforcement discretion not
to take enforcement action against the
individual. (Self-reporting is not,
however, a defense to a potential
individual liability action, and self-
reporting does not absolutely preclude
FRA from taking enforcement action
against an individual although FRA
would consider self-reporting a strong
reason for mitigation of the civil
penalty, disqualification order, or other
enforcement remedy.) . When each
railroad instructs its employees on its
operating rules, it should emphasize
this incentive to self-report. In addition,
we encourage each railroad to
reconsider its own discipline policy so
that it does not discourage self-reporting
of inadvertent noncompliance.
B. Good Faith Challenge—Legal Issues
Both prior to and subsequent to the
publication of the NPRM, AAR raised
legal objections to FRA promulgating a
rule with a good faith challenge
requirement as found in § 218.97. AAR’s
objections essentially raised four main
issues: (1) Whether FRA has the
authority to issue a regulation requiring
good faith challenge procedures; (2)
whether FRA is preempted by statute
from enforcing regulatory good faith
challenge procedures; (3) whether any
regulatory good faith challenge
procedures would contradict legislative
intent by subjecting railroads to
multiple enforcement actions and
penalties; and (4) whether FRA is
preempted by statute from requiring and
enforcing an anti-retaliatory provision
as part of the good faith challenge
requirements.
Some of AAR’s concerns are premised
on the legislative history and statutory
construction of 49 U.S.C. 20109 (Section
20109), which offers rail employees
protections from retaliation when
engaged in specified safety-related
conduct. Meanwhile, Section 20109 was
amended between the deadline for
comments to the NPRM and this final
rule. Public Law 110–53, which became
effective on August 3, 2007,
substantially amended Section 20109 by
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8453
increasing the number of situations in
which an employee is statutorily
protected from retaliation. For example,
paragraph (a) of Section 20109 makes it
unlawful to discriminate against
employees when the discrimination is at
all based on an ‘‘employee’s lawful,
good faith act:’’ (1) To aid nearly any
type of investigation whether initiated
by a governmental agency, Congress, or
another person with supervisory
authority over the employee or the
authority to conduct such
investigations; (2) ‘‘to refuse to violate
or assist in the violation of any Federal
law, rule, or regulation relating to
railroad safety or security;’’ (3) to file a
complaint, directly cause a railroad
safety or security enforcement
proceeding to be brought, or testify in
such a proceeding; (4) ‘‘to notify, or
attempt to notify, the railroad carrier or
the Secretary of Transportation of a
work-related personal injury or work-
related illness of an employee;’’ and (5)
to accurately report hours on duty
pursuant to the Hours of Service Laws.
Rail employees looking to seek
protection against alleged retaliation for
refusing to violate or assist in the
violation of one of the regulations in
part 218, subpart F, would likely do so
under Section 20109(a)(2).
Under Section 20109(b), the statute
prohibits a railroad employer from
retaliating against an employee for: (1)
‘‘Reporting, in good faith, a hazardous
safety or security condition;’’ (2)
refusing to work, under certain
conditions, when a hazardous safety or
security condition is confronted in the
employee’s duties; and (3) refusing to
authorize the use of any safety-related
equipment, track or structures, if those
items are in a hazardous safety or
security condition and certain other
conditions are met. Unlike Section
20109(a)(2), a refusal under Section
20109(b) is not predicated on a refusal
to violate or assist in the alleged
violation of any Federal law, rule, or
regulation relating to railroad safety or
security. Another substantial change to
Section 20109 is that the statute no
longer states that disputes and
grievances are to be handled under the
Railway Labor Act (‘‘RLA’’), but instead
permits relief under this section to be
initiated by an employee filing a
complaint with the Secretary of Labor.
Considering the substantial changes to
Section 20109, rail employees and
railroads are encouraged to carefully
review the statute in order to
respectively retain the protections
afforded and comply with the law.
In consideration of the statutory
amendments to Section 20109, there is
no longer a need for a regulatory anti-
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 8454 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations
retaliation provision. This
determination is further discussed in
this section under the title ‘‘4. Anti-
Retaliation Provision.’’ We anticipate
that the elimination of the regulatory
anti-retaliation provision, as well as
other changes to the good faith
challenge procedures made in response
to various comments should allay most
concerns, both legal and non-legal,
raised by AAR and other commenters.
Furthermore, for the following reasons,
FRA remains unconvinced that there are
any legal impediments to promulgating
a good faith challenge regulation.
1. FRA’s Rulemaking Authority
One of AAR’s legal issues is the
assertion that FRA does not have
rulemaking authority to issue a good
faith challenge provision. We disagree.
FRA has authority to regulate railroad
safety under 49 U.S.C. 20103 (Section
20103). More specifically, the language
of Section 20103(a) mandates that ‘‘[t]he
Secretary of Transportation, as
necessary, shall prescribe regulations
and issue orders for every area of
railroad safety’’ (emphasis added). In
addition, case law supports a broad
interpretation of an agency’s authorizing
statute. For example, in Whirlpool Corp.
v. Marshall, 445 U.S. 1 at 11, (1980), the
Supreme Court concluded that OSHA
‘‘clearly conform[ed] to the fundamental
objective of the [Occupational Safety
and Health] Act’’—the purpose of which
was ‘‘to prevent occupational deaths
and serious injuries’’—when it
promulgated a regulation limiting
retaliation against employees that refuse
to work because of a good faith belief
that they would be subjected to real
danger of death or injury. Similarly, in
promulgating § 218.97, FRA is
conforming to the objective of its
authorizing statute (to improve railroad
safety), by prescribing a regulation
which gives employees the right to
challenge what may be an unsafe work
assignment. Accordingly, FRA is
authorized to issue the rule’s good faith
challenge provision because it is
intended to improve railroad safety.
AAR does not challenge FRA’s
authority to regulate railroad safety
under Section 20103. Instead, AAR
claims that Section 20109 precludes that
authority as it relates to the good faith
challenge procedures, specifically
singling out the proposed anti-
retaliation provision previously found at
§ 218.97(b)(2). Meanwhile, changes to
the rule and the statute have rendered
pwalker on PROD1PC71 with RULES3
AAR’s concerns moot. For instance, the
final rule does not contain an anti-
retaliation provision similar to the
proposed provision and, thus, there
cannot be a conflict between
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Congressional intent and that particular
regulatory provision.
AAR also argues that by legislating to
provide employees a right to refuse to
work in certain circumstances under
Section 20109, Congress intended to
preclude FRA from issuing a rule
providing employees the right to
exercise a good faith challenge in
similar circumstances. It is important to
note that the good faith challenge in
both the NPRM and this final rule is
distinguished from the statutory refusal
to work as the regulatory challenge does
not permit an employee to refuse to
comply with the challenged directive
indefinitely, but instead only protects
the employee from being required to do
the challenged task while the appeal
process afforded by the good faith
challenge procedures is on-going. See
proposed § 218.97(b)(3), redesignated as
§ 218.97(c)(5)(iv) and (d)(2). The issue
thus becomes whether Congress
intended to preempt this type of
rulemaking by FRA.
In support of such an argument, AAR
asserts that FRA does not have the
authority to issue rules providing for the
good faith challenge for the same
reasons that FRA may not directly
regulate hours of service. In particular,
AAR cites Atchison, Topeka and Santa
Fe Ry. v. Pena, 44 F.3d 437, 441–42 (7th
Cir. 1994), aff’d, Bhd. of Locomotive
Engineers v. Atchison, Topeka and
Santa Fe Ry, 516 U.S. 152 (1996), in
which the Seventh Circuit overturned
FRA’s interpretation of the Hours of
Service Act, 45 U.S.C. 61–66 (‘‘Hours of
Service Act’’). AAR stated that ‘‘[s]ince
Congress has established hours-of-
service restrictions, FRA has no
rulemaking authority to establish its
own hours-of-service requirements.’’
AAR’s Comments at 3 (Dec. 11, 2006).
By analogy, AAR argues that as
Congress has established specific
standards and a specific process for an
employee to refuse work in Section
20109, FRA has no rulemaking authority
to establish its own requirements for an
employee to refuse work.
AAR’s analogy to, and reliance on,
Atchison is misplaced. FRA is neither
interpreting Section 20109 nor issuing
rules that implement Section 20109. In
order to effectuate that point, the final
rule specifically requires in
§ 218.97(b)(2) that a railroad or
employer’s good faith challenge written
procedures ‘‘shall indicate that the good
faith challenge described in paragraph
(b)(1) is not intended to abridge any
rights or remedies available to the
employee under a collective bargaining
agreement, or any Federal law
including, but not limited to, 29 U.S.C.
651 et seq., 6 U.S.C. 1142, or 49 U.S.C.
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20109.’’ This requirement in the
regulation is intended to clarify that
FRA is not attempting to undermine the
Congressional intent or language found
in Section 20109. Instead, FRA is using
the clear substantive rulemaking
authority in railroad safety matters
found in Section 20103.
2. FRA’s Enforcement Authority
Another of AAR’s legal issues is the
assertion that FRA’s proposed rule
provides for resolution of disputes and
grievances arising in situations already
covered by Section 20109. AAR argues
that enforcing the good faith challenge
procedures proposed in the NPRM
would contradict legislative intent to
preclude any agency enforcement of this
issue and that Section 20109 provides
similar employee protections and
requires disputes, claims and grievances
arising under that section to be handled
by the RLA. AAR further notes that a
House of Representatives committee
report in the legislative history for that
statute demonstrates that Congress
intended the RLA to ‘‘be the exclusive
means for enforcing this section’’ and
that it did ‘‘not intend for FRA to be
involved in this area.’’ H.R. Rep. No.
1025, 96th Cong., 2d Sess., at 16 (1980).
AAR thus argues that the enforcement of
the regulatory good faith challenge
procedures is preempted by Section
20109(c) and its legislative history. With
the recent amendments to Section
20109, AAR’s references to legislative
history have lost relevancy. However,
FRA disagrees with AAR’s position
under the former statute and the version
effective August 3, 2007.
AAR confuses procedures for
handling the initial exercise of a right
with procedures for handling a claim of
retaliation ‘‘resulting from’’ the initial
exercise of a right. Under the former
statute, Section 20109(c) provided
procedures for handling a claim of
retaliation as a consequence of the
initial refusal to work. That section
stated that ‘‘a dispute, grievance, or
claim arising under this section is
subject to resolution under section 3 of
the Railway Labor Act.’’ This language
refers to disputes, claims and grievances
resulting from a claim of retaliation as
a result of the employee’s exercise of the
right under former Section 20109. The
legislative history of that statute
corroborates this assertion. A House of
Representatives Committee Report
discussing the remedy under former
Section 20109 refers to discrimination
not involving discharge or suspension
‘‘such as assignment to undesirable
duties.’’ Since a dispute over an
assignment of undesirable duties refers
to an act of retaliation rather than an
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exercise of the initial right to refuse
work, this report lends support to the
proposition that the language ‘‘dispute,
grievance, or claim arising under this
section’’ in former Section 20109(c)
refers to disputes resulting from the
retaliation that occurred and not from
the initial exercise of the right to refuse
to work. The same position is applicable
to Section 20109 as recently amended.
This rulemaking, on the other hand,
only requires procedures for handling
the ‘‘initial’’ exercise of the good faith
challenge. These procedures include
such actions as not requiring the
challenging employee to complete the
work until the good faith challenge is
resolved and allowing the employee to
document the challenge. The
procedures provide employers and
employees with a process for handling
an employee’s good faith challenge.
Unlike Section 20109, the procedures
do not provide employers and
employees with a process for handling
an employee’s claim of retaliation
resulting from his or her good faith
challenge. Therefore, FRA’s procedures
for handling the good faith challenge do
not contradict legislative intent as
applied to this issue.
3. Multiple Enforcement Actions
AAR argues that the good faith
challenge would contradict legislative
intent by subjecting railroads to
multiple enforcement actions and
penalties in situations where both the
statutory right to refuse work under
Section 20109 and the regulatory right
to a good faith challenge would apply.
Assuming the employee chose to make
a good faith challenge and then claimed
that he was consequently retaliated
against, AAR argues that the employer
would not only be subject to a civil
penalty by the FRA under the regulation
but would also be subject to damages by
the Department of Labor (‘‘DOL’’) for
violating Section 20109. AAR argues
that multiple penalties for the same
occurrence contradict legislative intent.
The statutory and legislative histories
of both the former and current versions
of Section 20109 do not appear to
support AAR’s claim that multiple
penalties are impermissible. While
former 49 U.S.C. 20109(d), current 49
U.S.C. 20109(e), and H.R. Report No.
1025 state that employees may not seek
protection under multiple provisions,
they do not address the issue of
preventing employers from facing
multiple penalties. The statutory
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‘‘election of remedies’’ provision is
intended to protect an employer from
having to pay the same types of damages
to an employee multiple times just
because there are multiple statutory
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provisions upon which an employee
could file a complaint or a suit. The
election of remedies provision is
intended to prevent, for example, an
employee from getting double the
backpay, compensatory damages, and
punitive damages the employee is
entitled to by seeking protection under
both the Occupational Safety and Health
Act of 1970, 29 U.S.C. 660(c), and
Section 20109. We believe AAR is
misinterpreting the election of remedies
provision by confusing FRA’s
enforcement of penalties against an
alleged bad actor versus an employee
seeking remedies for him or herself.
Furthermore, a railroad routinely may
face multiple demands for penalties or
lawsuits in safety matters. Many times,
when FRA enforces a regulation against
a railroad for a set of facts, the railroad
is privately sued based on the same set
of facts. This situation is no different
and legally acceptable.
4. Anti-Retaliation Provision
AAR made several arguments
suggesting that FRA is prohibited by
statute from including an anti-
retaliation provision in the rule and,
although FRA disagrees with AAR’s
legal conclusion, the proposed anti-
retaliation provision found in
§ 218.97(b)(2) of the NPRM has not been
retained in the final rule. FRA proposed
an anti-retaliation provision that
required each railroad’s good faith
written procedures to provide that an
employee making a good faith challenge
not be discharged or in any way
discriminated against for making the
challenge. In order for the good faith
challenge to achieve its intended
purpose, i.e., improve railroad safety, it
is fundamental that an employee be
protected from retaliation when holding
an employer or supervisor accountable.
In October 2006, when the NPRM was
published, the Federal laws protecting
rail employees from retaliation were
more narrowly written than the recently
amended statutory protections provided
for in Section 20109; consequently,
when the NPRM was published, FRA
was concerned that there could be
multiple scenarios where an employee
could raise a good faith challenge and
not otherwise be legally protected from
employer retaliation.
Given the statutory amendments
effective August 3, 2007, it is unlikely
that a rail employee, whether working
for a publicly-owned railroad, a
privately-owned railroad, or a contractor
or subcontractor of either type of
railroad, would not be protected from
retaliation under either Section 20109 or
6 U.S.C. 1142, which was also enacted
in Public Law 110–53. These two
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8455
statutes protect employees from
retaliation for ‘‘the employee’s lawful,
good faith act done, or perceived by the
employer to have been done or about to
be done * * * to refuse to violate or
assist in the violation of any Federal
law, rule, or regulation relating to’’
either ‘‘public transportation safety or
security’’ or ‘‘railroad safety or security’’
respectively. 6 U.S.C. 1142(a)(2) or 49
U.S.C. 20109(a)(2); see also 29 U.S.C.
660(c). These statutes require DOL to
investigate complaints of anti-retaliatory
action and provide an array of remedies
to an employee for violation of the law
including reinstatement, backpay with
interest, compensatory damages, and
punitive damages up to $250,000. 49
U.S.C 20109(d)(3) and 6 U.S.C
1142(d)(3). Consequently, the recently
effective anti-retaliatory statutory
protections afforded to rail employees
would now protect an employee from
retaliation under FRA’s good faith
challenge rule and it is thus
unnecessary for this final rule to require
that each railroad include a similar anti-
retaliation provision in its good faith
challenge procedures.
Any potential FRA enforcement of
anti-retaliation under the good faith
challenge regulation would likely only
add a nominal deterrent effect given the
substantial remedies employees may
seek directly against a defendant under
the employee protections statutes.
FRA’s enforcement authority is limited
to civil penalty assessments up to
$27,000 against employers and
individuals (see 49 U.S.C. 21301),
emergency orders, compliance orders
and agreements, and FRA’s other
statutorily granted enforcement
authority. FRA does not have the
authority to collect damages or back pay
on behalf of any employee, nor order a
railroad to reverse itself on a claim of
discharge, discrimination or other
retaliation. In consideration of these
employee protection alternatives, FRA
has decided to remove the anti-
retaliatory provision from this rule
rather than try to duplicate an
investigation into alleged anti-
retaliatory acts or omissions that an
employee will certainly want to pursue
under a collective bargaining agreement,
with DOL, or in another forum.
Given the changed playing field for
Federal inquiries into alleged
retaliation, FRA is now assured that
claims of retaliation will be adequately
investigated and remedied by another
Federal agency. FRA has already held
discussions with DOL on ways to
integrate FRA’s safety program with
DOL’s whistleblower protection
program. For example, FRA’s employees
will be trained to recognize when an
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 8456 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations
employee has alleged retaliation so that
FRA may inform employees of their
basic rights and refer such employees to
DOL. FRA anticipates taking other
action to inform employees of the
statutory protections, such as providing
a link to DOL’s Web site from FRA’s
Web site and reminding employee
complainants of the statutory
protection.
C. Preemptive Effect
The American Association for Justice
(AAJ) commented that FRA had
impermissibly broadened the scope of
preemption under 49 U.S.C. 20106. AAJ
objected to FRA’s discussion in the
preamble of the NPRM regarding 49 CFR
217.2 and 49 CFR 218.4. FRA’s
discussion of each of these sections was
identical, providing that:
This section informs the public of FRA’s
intention and views on the preemptive effect
of the rule. The preemptive effect of this rule
is broad, as its purpose is to create a uniform
national standard. Section 20106 of Title 49
of the United States Code provides that all
regulations prescribed by the Secretary
related to railroad safety preempt any State
law, regulation, or order covering the same
subject matter, except a provision necessary
to eliminate or reduce an essentially local
safety hazard that is not incompatible with a
Federal law, regulation, or order and that
does not unreasonably burden interstate
commerce. Exceptions would be rare. In
general, 49 U.S.C. 20106 will preempt any
State law—whether statutory or common
law—and any State regulation, rule, or order,
that concerns the same subject matter as the
regulations in this rule. 71 FR 60372 at 60382
and 60386.
AAJ specifically objected to FRA’s
assertion that the preemptive effect of
the rule is broad, that exceptions would
be rare, and that § 20106 preempts
common law claims. In support of its
position that these assertions amounted
to an expansion of preemption, AAJ
cited In re Soo Line R. Co. Derailment
of January 18, 2002, 2006 WL 1153359,
an unreported Minnesota state court
decision. In that decision, the court
found for various reasons that plaintiffs’
claims were not preempted. Some were
not preempted, according to the court,
because although Federal regulations
covered the subject matter of the claims,
the conditions at the location at the time
of the derailment constituted an
essentially local safety hazard. Others
were not preempted, the court said,
because the Federal regulations covering
the subject matter of the claims were
violated. A third category of claims were
pwalker on PROD1PC71 with RULES3
found not to be preempted because the
regulations alleged to cover the subject
matter of the claims were deemed by the
court not specific enough to do so, and
a final group of claims were found not
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to be preempted because there was no
regulation covering the subject matter.
While FRA disagreed with AAJ’s
comments, AAJ’s comments have been
rendered moot by enactment of Pub. L.
No.110–53, discussed below.
Normal State negligence standards
apply where there is no Federal action
covering the subject matter. In Pub. L.
No.110–53, Congress recently clarified
the availability of State law causes of
action under section 20106 where there
is Federal action covering the subject
matter. As amended, 49 U.S.C. 20106
provides that issuance of these
regulations preempts any State law,
regulation, or order covering the same
subject matter, except an additional or
more stringent law, regulation, or order
that is necessary to eliminate or reduce
an essentially local railroad safety or
railroad security hazard; that is not
incompatible with a law, regulation, or
order of the United States Government;
and that does not unreasonably burden
interstate commerce. Section 20106
permits State tort actions arising from
events or activities occurring on or after
January 18, 2002, for the following: (a)
A violation of the Federal standard of
care established by regulation or order
issued the Secretary of Transportation
(with respect to railroad safety, such as
these regulations) or the Secretary of
Homeland Security (with respect to
railroad security); (b) a party’s violation
of, or failure to comply with, its own
plan, rule, or standard that it created
pursuant to a regulation or order issued
by either of the two Secretaries; and (c)
a party’s violation of a State standard
that is necessary to eliminate or reduce
an essentially local safety or security
hazard, is not incompatible with a law,
regulation, or order of the United States
Government, and does not unreasonably
burden interstate commerce. Nothing in
section 20106 creates a Federal cause of
action on behalf of an injured party or
confers Federal question jurisdiction for
such State law causes of action.
V. Section-by-Section Analysis
Part 217—[Amended]
Section 217.2 Preemptive Effect
This section informs the public of
FRA’s intention and views on the
preemptive effect of the rule. The
preemptive effect of this rule is broad,
as its purpose is to create a uniform
national standard. Section 20106 of
Title 49 of the United States Code
provides that all regulations prescribed
by the Secretary related to railroad
safety preempt any State law,
regulation, or order covering the same
subject matter, except an additional or
more stringent provision necessary to
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eliminate or reduce an essentially local
safety or security hazard that is not
incompatible with a Federal law,
regulation, or order and that does not
unreasonably burden interstate
commerce. Section 20106 permits State
tort actions arising from events or
activities occurring on or after January
18, 2002, for the following: (a) A
violation of the Federal standard of care
established by regulation or order issued
by the Secretary of Transportation (with
respect to railroad safety, such as these
regulations) or the Secretary of
Homeland Security (with respect to
railroad security); (b) a party’s violation
of, or failure to comply with, its own
plan, rule, or standard that it created
pursuant to a regulation or order issued
by either of the two Secretaries; and (c)
a party’s violation of a State standard
that is necessary to eliminate or reduce
an essentially local safety or security
hazard, is not incompatible with a law,
regulation, or order of the United States
Government, and does not unreasonably
burden interstate commerce. Nothing in
section 20106 creates a Federal cause of
action on behalf of an injured party or
confers Federal question jurisdiction for
such State law causes of action. The
NPRM language has been amended to
reflect the changes made to Section
20106.
Only one comment addressed this
paragraph and that comment has been
discussed in the preamble. See IV.
General Comments/Major Issues, C.
Preemptive Effect.
Section 217.4 Definitions
FRA has added a definition of
Associate Administrator for Safety to
this section that is consistent with other
definitions of this term in this chapter.
The purpose of including this definition
is to identify an official who would have
the authority to require amendments to
programs of operational tests and
inspections. FRA did not receive any
comments related to this definition.
FRA has added a definition of
qualified to this section. The need for
this definition arose from the new
requirements for railroad testing officers
in § 217.9. As further explained in the
analysis for that section, it is not
acceptable for a railroad testing officer
to be monitoring or instructing
employees without being instructed,
trained and examined, i.e., qualified, on
the railroad’s operating rules and the
tests the officer is expected to perform;
thus, FRA is requiring such
qualification. A person cannot be
considered qualified unless he or she
has successfully completed all
‘‘instruction, training, and examination’’
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 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations
programs required by both the railroad
and this part.
The definition of ‘‘qualified’’ is
modeled after the definition used in
§ 240.7 in this chapter and should have
the same meaning despite some slight
differences. The phrase ‘‘training and
testing’’ has been replaced by
‘‘instruction, training, and examination’’
to more thoroughly reflect the
educational aspects of the requirements
for a qualified person. The definition
does not contain the word
‘‘appropriate’’ prior to the educational
aspects so as to emphasize that the
educational aspects of qualifying a
person are mandatory, not discretionary.
A word choice was made to substitute
the term ‘‘successfully completed’’ for
the word ‘‘passed.’’ The definition
added to part 217 is the same definition
added to part 218, subpart F. The
relevant comments FRA received
pertained to the proposed requirements
in § 217.9 and not the definition itself.
Section 217.9 Program of Operational
Tests and Inspections; Recordkeeping
FRA is amending and adding
paragraphs to this section. Although not
every existing paragraph is being
amended, FRA is reprinting the entire
section to make it easier for readers to
follow.
FRA’s amendment to paragraph (a)
would clarify that the requirement to
conduct operational tests and
inspections specifically include tests
and inspections sufficient to verify
compliance with the requirements of
subpart F of part 218 of this chapter.
The proposed and final rules identify
certain operating rules with which
noncompliance has led to an increase in
human factor-caused accidents. Subpart
F of part 218 requires that each railroad
have in effect certain operating rules
and that each railroad officer, supervisor
and employee uphold and comply with
those rules. As the operating rules
identified in subpart F of part 218 are
designed to address the most frequently
caused human factor accidents, FRA’s
amendment to paragraph (a) requires
that each railroad periodically conduct
operational tests and inspections to
determine the extent of compliance with
its code of operating rules, timetables,
and timetable special instructions,
specifically including tests and
inspections sufficient to verify
compliance with the requirements of
subpart F of part 218 of this chapter, in
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accordance with a written program as
required by paragraph (c) of this section.
The program’s increased focus on
human factor-caused accident
prevention should direct awareness to
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the related operating rules and correlate
with a decrease in such accidents.
Paragraph (b) is added to this section
to establish new responsibilities for both
railroads and those railroad officers who
conduct operational tests and
inspections, i.e., railroad testing officers.
FRA inspections and investigations
have revealed railroad testing officers
who lack the fundamental knowledge to
perform adequate tests and inspections.
In order for these officers to be able to
do a proper job, they must know the
railroad’s operating rules, how the tests
they will conduct fit into the railroad’s
testing program, and how to conduct a
proper test. AAR and APTA
recommended amending paragraph
(b)(1)(iii) because they believe this
paragraph might be wrongly interpreted
to require field training on every
operational test an officer might be
authorized to conduct. FRA does not
agree that changing ‘‘as necessary to
achieve proficiency’’ to ‘‘when
necessary to achieve proficiency’’
changes the meaning, as AAR and
APTA prefer. We also disagree with
AAR’s interpretation of the proposed,
and now final, paragraph. It is
unnecessary for every railroad testing
officer to be qualified and receive field
training on every conceivable
operational test. Experience can
substitute for field training, as long as
the person is able to conduct an
acceptable test. In addition, a railroad
testing officer does not need to receive
field training on an operational test that
the officer will not be asked to conduct.
Of course, if an officer who conducts an
improperly executed test is found to
lack relevant experience conducting
such a test and any field training on
how to conduct such a proper test, FRA
would consider the event to be a
violation of the requirement. That said,
FRA recognizes that some tests and
inspections are so simple that no
particular experience or training should
be necessary; a railroad will need to use
discretion and make training decisions
on a case-by-case basis if it chooses not
to train its railroad testing officers on
each operational test. Paragraph
(b)(1)(iv) requires that railroad testing
officers conduct operational tests in
accordance with the railroad’s program
for such tests and inspections. A test
that is incompetently executed should
not count towards compliance with a
railroad’s program of operational tests
and inspections. Finally, this paragraph
requires written records documenting
that each railroad testing officer was
properly qualified and that such records
be made available to FRA upon request.
FRA received several comments with
regard to proposed paragraph (b). BRS
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8457
and BLET expressed support for the
concept of requiring railroad testing
officers to be qualified on operating
rules, the testing program and
conducting operational tests. AAR
requested a ‘‘grandfather provision’’ that
would allow current testing officers to
continue conducting tests for ninety
days after the effective date of the rule
before records would need to be kept
that these testing officers were qualified
in accordance with paragraph (b)(2).
Similarly, APTA requested that each
railroad have until December 21, 2008,
to qualify its railroad testing officers on
the operational testing program. In the
NPRM, FRA expressed disagreement
with the need for such a grandfather
provision. However, based on the
comments and further consideration of
the qualification and recordkeeping
requirements, FRA will not require
compliance with this paragraph until
July 1, 2008, although we encourage
each railroad to attempt to comply
earlier.
FRA does not consider the
requirements of paragraph (b) to be
onerous. Each railroad should already
maintain an accessible record showing
when each testing officer was last
qualified on the railroad’s operating
rules in accordance with paragraph
(b)(1)(i). It is contrary to logic that a
railroad would allow a person to
become a railroad testing officer without
ensuring that the person is qualified on
the operational testing program
requirements and procedures relevant to
tests and inspections the testing officer
would be expected to conduct. We do
not understand how a person could
possibly do a testing officer’s job if the
person lacked sufficient knowledge of
the railroad’s testing program such that
the person could not conduct an
adequate test or inspection. With that
understanding, FRA would not expect
that a great degree of new training is
necessary, nor that it would be
burdensome to create a record. APTA
recommended that FRA relax the record
retention requirements for
‘‘grandfathered’’ or existing testing
officers. In the alternative, we suggest
that if a railroad has not previously kept
a record of whether an officer is
qualified on the operational testing
program, that the railroad create a short
survey which would allow an officer to
acknowledge whether the officer
considers himself/herself qualified on
the various aspects of the program, as
well as qualified (either through
experience or prior instruction, training,
and examination) on the various types
of tests and inspections that the officer
may be asked to conduct. Meanwhile,
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FRA acknowledges that each railroad
must qualify its railroad testing officers
on any amended or added operating
rules that seek to conform with part 218,
subpart F of this chapter, and any
corresponding changes to the railroad’s
operational testing program by July 1,
2008; however, as most of these new
Federal requirements are already similar
to existing operating rules on the vast
majority of railroads, we do not
anticipate that this additional training
will be extensive. Except for adding this
applicability date, the final version of
paragraph (b) is the same as the version
proposed.
FRA has moved paragraph (b) to (c)
and added two new requirements found
at (c)(1) and (c)(5). Regarding the two
new requirements, FRA has
implemented a scheme that requires
each railroad to amend the existing
program of operational tests and
inspections with the purpose of
requiring railroads to do a better job of
focusing their tests and inspections on
those types of operating rules that either
cause the most human factor-caused
accidents nationwide or are identified
as problematic on the particular
railroad’s division or system. At a
minimum, FRA expects railroads to test
and inspect for those operating rules
identified as problematic in the
quarterly or six month reviews, i.e.,
those operating rules violations that
have recently caused accidents or
incidents on the division or system-
wide. We also expect railroads to
regularly spot-check for compliance
with those operating rules that lead to
accidents and incidents nationwide,
even if the railroad has not specifically
encountered any recent incidents. As
mentioned in the SUPPLEMENTARY
INFORMATION section under
‘‘Development of the NPRM,’’ the
verification through testing process does
not always work well because during
some periods of disruption related to
organizational or personnel changes,
some railroads do not perform
operational tests that address the root
cause of human factor accidents. At
worst, administration of the program
may be reduced to a numbers-generating
exercise, and, consequently, on portions
of the railroad, officers may conduct
relatively few meaningful tests. Clearly,
FRA intends for the program of
operational tests and inspections to be
meaningful and the amendments are
intended to forcefully move lagging
railroads to produce more meaningful
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tests and inspections.
Paragraph (c)(1) contains the existing
requirement that the program shall
provide for operational testing and
inspection under the various operating
VerDate Aug<31>2005 18:18 Feb 12, 2008 Jkt 214001
conditions on the railroad. It has also
been amended, so that on or after July
1, 2008, each railroad shall be required
to amend its program to ‘‘particularly
emphasize those operating rules that
cause or are likely to cause the most
accidents or incidents, such as those
accidents or incidents identified in the
quarterly reviews, six month reviews,
and the annual summaries as required
under paragraphs (e) and (f), as
applicable.’’ Thus, FRA expects that
each railroad would conduct a
significant number of tests and
inspections directed at addressing
localized problems with compliance,
such as those identified on a division,
problems identified on a system-wide
basis, and leading causes of human
factor-caused accidents nationwide,
such as those identified through this
final rule.
In order to gain some specificity in
each railroad’s program, paragraph (c)(1)
also requires ‘‘a minimum number of
tests per year that cover the
requirements of part 218, subpart F of
this chapter.’’ FRA is reluctant to state
a percentage or specific number per
number of employee work hours as each
railroad may have particular operating
rules it wishes to emphasize to a greater
degree than the next; however, the
objective in including this language is to
encourage sufficient testing in these
critical areas to verify good compliance
by railroad operating employees and to
help establish the expectation that there
will be compliance with those rules.
FRA would be critical of a program that
placed the majority of its emphasis on
enforcing operating rules that are not
leading causes of accidents/incidents.
The requirement for a specific minimum
number of such tests per year follows
from such a requirement imposed in EO
24, albeit EO 24 covered a smaller
subset of the operating rules FRA is
covering in part 218, subpart F. AAR
requested that the rule allow a railroad
to specify in its program ‘‘a minimum
percentage of tests per year’’ that cover
the requirements of part 218, subpart F
of this chapter, as opposed to a just ‘‘a
minimum number of tests per year.’’
AAR’s comment was somewhat unclear
in that it did not specify how the
percentage might be calculated; we
assume that AAR means a percentage of
the total number of operational tests to
be performed in a given year will cover
part 218, subpart F requirements. FRA
is not adopting AAR’s suggestion as we
do not understand why a railroad that
can identify a minimum number of total
operational tests per year would have
trouble identifying a minimum number
of tests that cover the requirements of
PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
part 218, subpart F. It may be that
railroads would like the flexibility to
change the minimum number of tests in
periods less than a year, i.e., monthly,
quarterly, or six-month intervals. FRA
recognizes that, from time-to-time, a
railroad may have a reduction in
business, a reduction in the number of
operating employees, a reduction in
employee work hours, or another factor
that reduces the need to conduct as
many operational tests as it set forth in
its operational testing program. When
such factors occur, a railroad should
simply amend its program and create a
record explaining the reason for the
reduction in the amount of minimum
tests. In that way, when FRA audits the
program, we can readily deduce why
the railroad has reduced the minimum
number of tests to be conducted, decide
whether the reasons are valid, and
notify the railroad if we disapprove of
the action taken pursuant to paragraph
(i).
Paragraph (c)(5) adds a new
requirement that, on or after July 1,
2008, the program show the railroad’s
designation of an officer to manage the
program at each level of responsibility
(division or system, as applicable). The
officer may be designated either by
name or job title, as long as the
designation clearly identifies a
responsible person that FRA can contact
when FRA audits the program. The
officer shall also have oversight
responsibility to ensure that the
program is being implemented properly
across each division and system-wide.
FRA’s expectation is that this officer
will at least manage the program to
ensure that the overall direction of the
program is sound. This designated
officer would be expected to take an
active role in ensuring that divisions
and the entire system are meeting
program requirements and ordering
changes when expectations are not met.
To the degree that a system-level officer
can identify a division, or a specific
railroad testing officer, that is failing to
appropriately direct efforts, the
designated officer is expected to take
corrective action. In order to ensure that
the railroad’s testing officers are
properly directing their efforts to reduce
accidents/incidents, the designated
officer or officers will need to make
adjustments to the implementation of
the program based on any reviews that
might be required in paragraph (e), as
well as the annual summary produced
in accordance with former paragraph
(d), which has been redesignated as
paragraph (f).
Additionally, former paragraph (b)(6)
has been redesignated as paragraph
(c)(7) without any changes from the
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prior existing rule. Former paragraph (c)
has been redesignated as paragraph (d)
also without change.
Paragraph (e) adds requirements for
periodic reviews for any railroad with at
least 400,000 total employee work hours
annually. FRA has decided to provide
each Class I railroad (including the
National Railroad Passenger
Corporation) until July 1, 2008 to
comply with this paragraph and, the
remaining railroads to which this
paragraph applies, shall comply with an
applicability date of January 1, 2009.
The NPRM only would have provided
until the effective date of the rule to
comply with this section and FRA
decided to heed the concerns raised
during the RSAC working group
meetings that the effective date of the
rule would not provide sufficient time
for each railroad to implement the
reviews required by this paragraph.
FRA has decided to exclude freight
railroads that have less than 400,000
total employee work hours annually
from conducting periodic reviews and
analyses as provided in paragraph (e)(1)
because only 135 smaller railroads that
meet this criterion reported any human
factor caused rail accidents, and of those
135 that reported such accidents, only
20 railroads reported five (5) or more
human factor caused rail accidents
during the years 2002 through 2005.
During this four year period, these 135
smaller railroads experienced 334
human factor caused rail accidents
amounting to 7 percent of all human
factor caused rail accidents. It should
also be considered that there are almost
600 smaller railroads that fit this
criterion and yet only 135 reported any
human factor caused rail accidents at
all. On that basis, FRA is excepting the
smallest railroads, based on the less
than 400,000 employee work hours
threshold, from the monthly and
quarterly reviews. Of course, if FRA
accumulates evidence to suggest that
railroads with less than 400,000
employee work hours are experiencing
a significant number of human factor
caused accidents, FRA will consider
whether to initiate a new rulemaking
revising this final rule.
Similarly, Amtrak and the railroads
providing commuter service in a
metropolitan or suburban area also
experience a relatively low number of
human factor caused rail accidents
compared to the freight railroads with
greater than 400,000 employee work
hours annually. During the years 2002–
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2004, Amtrak and the commuter
railroads experienced a total of 270
accidents attributed to human factor
causes. At a meeting held with members
of APTA on April 27, 2006, (notes of
VerDate Aug<31>2005 18:18 Feb 12, 2008 Jkt 214001
this meeting are in the docket of this
proceeding) APTA explained that many
of its member railroads do not keep
accident/incident data and/or
operational testing data electronically
and, thus, conducting periodic reviews
greater than annually would create a
substantial burden for those railroads
that could not simply run a report from
a computer. In addition, APTA members
reminded FRA that a commuter
railroad’s budget is dependant on the
generosity of local and state
governments, which may not want to
upgrade computers and software which
would permit quicker and more efficient
accident/incident reviews. Passenger
railroads are generally more stable in
their organizations and experience
greater continuity with respect to
staffing at the line officer level (where
many problems often develop).
With regard to six month reviews,
however, there is a definite benefit for
Amtrak and the commuter railroads to
conduct a thorough system level review
to achieve some degree of
accountability. Meaningful reviews
should help drive proper
implementation of the program of
operational tests and inspections—thus
driving down the number of accidents/
incidents attributable to human factors.
APTA explained in its comments that
there are funding and development
issues that will require a period of
training on these new regulations and
any new automated reporting system
that is created in response to the rule;
consequently, APTA requested 12
months to implement the first six-month
review under paragraph (e)(2). FRA has
decided to deny APTA’s request to
delay implementation of the six-month
review for a year. FRA does not agree
with APTA that the six-month review
requires a ‘‘new automated reporting
system’’ for any railroad that does not
already have one up and running. The
records and reviews required by this
section could be maintained by old-
fashioned written records, and the
analysis required could be completed
without the aid of a computer or with
software readily available in stores now.
That said, we agree that an automated
system would likely provide for more
efficiently completed analysis. FRA,
however, has not required such
automation. Finally, FRA has not
excepted even the smallest commuter
railroads from the requirement that
reviews be conducted, because in FRA’s
experience no railroad is free from the
risk that good discipline will erode over
time, and the consequences of a
passenger train accident can be very
serious indeed. The benefits of the
PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
8459
review are too important to postpone for
a year.
For the major freight railroads, the
quarterly review is to be developed and
conducted at the division level unless
no division headquarters, or its
equivalent, exists. Most larger railroads
have created division headquarters (see
current definition in § 217.4 of this part)
to manage portions of the railroad and,
certainly, railroads that have divisions
do so because it is more efficient. That
is, it is easier for an officer at a division
headquarters to know what safety issues
are problematic in his or her division
than an officer of a large railroad at the
system level.
AAR asserted in its comments an
overall objection to paragraph (e) as it
deems the reviews and recordkeeping
requirements of this section as ‘‘micro-
management’’and ‘‘command-and-
control regulation at its worst.’’ AAR
maintains that monthly, quarterly, and
six-month reviews are not typically
conducted by freight railroads as FRA
asserted in its proposed rule and that
FRA is wrong to maintain that it is a
best practice for freight railroads to
adjust its program of tests and
inspections based on one quarter’s
worth of data. Furthermore, AAR asserts
that even if some railroads voluntarily
conducted the same types of reviews
without regulation, FRA is not justified
to impose this ‘‘regulatory straitjacket,
with the formality and recordkeeping
that are byproducts of regulatory
requirements,’’ on each railroad.
FRA appreciates the comments of
AAR with regard to paragraph (e) and
certainly has given AAR’s counterpoint
due consideration. The main focus of
this rule is to reduce the number of
human factor caused accidents, and
FRA’s experience has been that one way
to do that is to impose these types of
review requirements which force
needed improvements on a railroad’s
operational testing and inspection
program. Prior to the publication of this
rule, when FRA has identified
significant problems with such a
program and there has also been a
correlation of noncompliance with
important safety laws, FRA has shown
some restraint in enforcement while
working with some railroads in trying to
improve compliance. On a case-by-case
basis, FRA has entered into a voluntary
compliance agreement with a railroad so
that it is clear what enforcement action
FRA will take if the operational testing
and monitoring changes requested by
FRA are not completed by a specific
deadline.
Although voluntary compliance
agreements are typically effective in
improving safety on a particular railroad
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 8460 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations
or division, FRA’s experience has been
that the problems that trigger the need
for such agreements are fairly common
in the industry. The regulatory approach
in this rule is significantly more
efficient than entering into tens or
hundreds of individual agreements. The
implementation of this rule will
effectively require the implementation
of best practices that should aid in the
reduction of accidents/incidents before
FRA is able to pinpoint any problem
associated with a particular railroad’s
system of tests and inspections. Rather
than changing one railroad, or one
division on a large railroad, at a time,
this rule will require all but the smallest
freight railroads to place greater
emphasis on human factor caused
accidents in each operational test and
inspection program.
AAR also commented that FRA
should not require that a designated
officer for each division shall be the sole
officer who may perform the required
monthly and quarterly reviews of tests
and inspections, if a railroad has
divisions. AAR suggests that the rule
permit each railroad the flexibility to
choose whether an officer at
headquarters can perform the required
reviews. FRA is rejecting AAR’s
comment as it applies to the quarterly
review. In order to comply with the
requirements for the quarterly review
under paragraph (e)(1)(i), an officer
would need to have a detailed
knowledge of the operation. It is our
experience that railroads that have
divisions are too large for a person at the
system headquarters to have the kind of
mastery over each division to conduct
the kind of in-depth analysis required of
the quarterly review. Where FRA has
audited strong programs, division
officers are conducting periodic analysis
of accidents/incidents at the division
level and making appropriate
adjustments at the division level as
remedial action. We are surprised at
AAR’s comments because the divisions
typically operate semi-autonomously
from system headquarters, albeit with
regular coordination on system-wide
matters. As a practical matter, if a
division headquarters exists, an officer
at the division level will be in the best
position to perform the types of reviews
required by the quarterly review.
Meanwhile, FRA has responded to
AAR’s comment by deleting the
requirement for a monthly review.
Instead, the review to determine
whether each railroad testing officer is
pwalker on PROD1PC71 with RULES3
conducting the minimum number of
each type of test or inspection required
by the railroad’s program will only be
required on a quarterly basis, as
opposed to a monthly basis. What was
VerDate Aug<31>2005 18:18 Feb 12, 2008 Jkt 214001
formerly referred to as the monthly
review, but is now part of the quarterly
review, is not expected to be an onerous
task. It is merely a quick written tally of
the number of tests performed by each
railroad testing officer, including the
railroad operating rules tested for, and
a determination made whether the tally
shows adherence to the written program
of operational tests and inspections.
When this type of review reveals
noncompliance with the program, the
designated officer is required to make
any necessary adjustments to the tests
and inspections required of railroad
officers for the subsequent period(s).
The designated railroad officer in
paragraph (c)(5) may or may not be the
officer who performs this review, but
this designated railroad officer would be
required to ensure that the quarterly
review is properly completed. As FRA
would expect that this aspect of the
quarterly review would be derived from
data collected at the division level, FRA
does not anticipate any problems for a
division officer producing this
information in a quarterly review.
FRA is mandating a comprehensive
quarterly review for freight railroads
under paragraph (e)(1)(i). In addition to
the scorecard for each railroad testing
officer (i.e., the formerly proposed
monthly review), it shall include a
‘‘review of the [railroad’s] accident/
incident data, the results of prior
operational tests and inspections, and
other pertinent safety data for that
division or system to identify the
relevant operating rules related to those
accidents/incidents that occurred
during the quarter.’’ The focus of the
quarterly review is to identify those
operating rules which pose the greatest
risk of being violated—which should
then be targeted for regular tests and
inspections. That is why FRA is
requiring that based upon the results of
the quarterly review, the designated
officer shall make any necessary
adjustments to the tests and inspections
required of railroad officers for the
subsequent period. The quarterly review
must be in writing and include the data
upon which any conclusions are based.
In response to several comments, FRA
has clarified that any review, record or
other information required by this
section to be in writing may be retained
electronically pursuant to paragraph (g).
FRA expects that in order to conduct
a meaningful quarterly review, each
railroad will review accident/incident
data, operational test data, and other
pertinent data. For example, a railroad
should identify the relevant facts for
each category of data. The relevant facts
are usually covered if a railroad can
answer the questions signifying who,
PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
what, where, when, why, and how
often. For accident/incident data, these
questions would involve identifying all
the employees involved in the accident/
incident, a description of the accident/
incident, the location where it occurred,
the time it occurred, the root cause and
any secondary causes, and whether the
division or system has suffered this type
of accident/incident often, sometimes or
never. For operational test data, the
issues include identifying the railroad
testing officer(s) responsible for the
particular location, whether the testing
officers are testing for the operating
rules responsible for any recent
accidents/incidents, whether the testing
officers conducted any tests where any
recent accidents/incidents occurred,
whether the testing officers are testing
during the hours of highest incident
rates, whether any railroad officers are
briefing the employees as to the root or
secondary causes and the fact that the
railroad will be testing for compliance,
and how often the officers are
conducting any follow-up testing and
job briefings.
FRA believes there are at least five
other types of pertinent safety data that
should be included in a proper quarterly
review. One, if FRA has conducted any
recent inspections, the railroad should
check whether its officers’ tests reflect
FRA’s findings. Two, if an employee is
involved in an accident/incident, the
employee’s safety record may provide
insight. Three, the railroad should
determine if there is any correlation
between the training or experience of
the local railroad testing officers and the
locations where accidents/incidents
have occurred. Four, a railroad should
similarly consider the extent to which
employee experience plays a part in any
given accident/incident. Fifth, a
railroad’s review should consider
whether any operational conditions
have recently changed that increased
the likelihood of either noncompliance
with the operating rules or accidents/
incidents. Special attention to all these
details in the quarterly or six month
review, as applicable, should lead a
railroad to meaningful application of its
written program of operational tests and
inspections with a greater potential for
driving down the frequency and severity
of accidents/incidents.
Although it would be best if quarterly
reviews were completed immediately
following the end of each quarter, FRA
is requiring completion no later than 30
days after the quarter has ended. We did
not receive any negative comments
regarding the 30 day period. FRA
originally considered requiring the
quarterly review in half that time but
railroads participating at a Railroad
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 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations
Operating Rules Working Group
meeting suggested that additional time
would be needed for those railroads that
do not maintain their safety data
electronically. For those railroads that
keep records electronically, FRA
encourages quarterly reviews to take
place contemporaneously with the
conclusion of the quarter. Regardless of
how long it takes to complete the
quarterly review, each division or
system should be prepared to redirect
its railroad testing officers in order to
appropriately react to any accidents/
incidents of noncompliance during the
previous quarter. Even where a division
or system has had a particularly safe
quarter, railroad testing officers should
be instructed to adjust the way in which
they are conducting their tests so that
employees cannot easily anticipate the
types of tests to be conducted, nor the
dates and locations of such tests.
Because freight railroads with divisions
might find it difficult to do the system-
wide six month review in only 30 days,
especially since the quarterly reviews
might not be completed until the 30th
day, FRA has amended the proposed
rule by allowing freight railroads 60
days after the review period has ended
to complete the six month review.
Passenger railroads with divisions are
not quite as large or complex that
completion of the six month review
should take more than 30 days.
In paragraphs (e)(1)(ii) and (e)(2), six
month reviews are only required for
each Class I railroad, Amtrak, and each
railroad providing commuter service in
a metropolitan or suburban area. The
basis for the requirement is that the
identified freight railroads are so large
that each would benefit from an officer,
likely at the system headquarters, who
is identifiable by name or job title, who
will oversee whether each division, line
or segment is complying with the
program of operational tests and
inspections. It is expected that such an
officer would have the authority to
intervene in division, line or segment
operations to the extent that this officer
could order changes to the way
divisions are implementing the
program. The purpose for such
intervention would be to require certain
types of operational tests or inspections
based on observations made system-
wide that may not be apparent to each
designated division officer armed only
with data from his or her own division.
In the case of Amtrak and the
commuter railroads, paragraph (e)(2)
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requires reviews equivalent to those for
the freight railroads in paragraph (e)(1),
however all the reviews are to take place
at least every six months. Of course,
these are minimum requirements and
VerDate Aug<31>2005 18:18 Feb 12, 2008 Jkt 214001
passenger railroads are free to initiate
more frequent reviews. For example,
paragraphs (e)(2)(i) and (ii) describe
reviews that are equivalent to the review
required for freight railroads on a
quarterly basis and certainly passenger
railroads may perform that review on a
quarterly basis as well; however, the
passenger railroads are required to
comply with those two requirements at
least every six months. Paragraph
(e)(2)(iii) describes a review that is to be
completed at least once every six
months and is the equivalent of the six
month review required for freight
railroads. As it is required that the
passenger railroads conduct the same
reviews as the freight railroad with the
exception of the timing of those reviews,
the prior section-by-section analysis
description for each review is applicable
here.
Because FRA needs to be assured that
each railroad is complying with any
required reviews, the regulation requires
that the reviews be retained for one year
after the end of the calendar year to
which they relate and shall be made
available to FRA upon request. FRA also
encourages railroads to store these
records electronically, pursuant to
paragraph (g), as long as the information
can be produced upon request.
Former paragraph (d), which is
redesignated as paragraph (f), is being
amended in two respects. One
amendment is merely to change the
term ‘‘manhours’’ to ‘‘employee work
hours’’ as the latter is gender neutral.
The second amendment would clarify
that this requirement does not apply to
‘‘a railroad with less than 400,000 total’’
employee work hours annually, as the
current rule accidentally fails to include
the qualification of the time period.
In the NPRM, FRA questioned the
necessity of retaining the annual
summary requirement in paragraph (f)
and FRA received several comments,
including from AAR, APTA, and UTU,
supporting the elimination of the annual
summary on operational tests and
inspections requirement. After further
consideration, FRA realizes that the
annual review requires different
information than the other reviews and
that eliminating it would have a serious
detrimental effect on FRA’s ability to
audit a railroad’s program. The annual
summary requires all but the smallest
railroads to create a written summary of
the number, type, and result of each
operational test and inspection, stated
according to operating divisions where
applicable, that was conducted as
required by paragraphs (a) and (c) of this
section. This written record may be kept
in an electronic format pursuant to
paragraph (g). Generally, railroads keep
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8461
the data used to create this report in an
electronic database which makes it
relatively simple to generate the
required annual summary.
Former paragraph (e) is redesignated
paragraph (g) with one amendment. The
former rule specified that the railroad
maintain a ‘‘desk-top’’ computer upon
which the railroad can retrieve data. As
laptop and notebook computers have
become more common, and their
computing abilities now rival desk-top
models, there is no reason to restrict
railroads from using any computer to
retrieve records for FRA under this
section.
Proposed paragraph (h), which
suggested a requirement specifying that
railroads and individuals can be liable
for falsifying or deliberately mutilating
records required by this section, has
been deleted as unnecessary for two
reasons. One, if FRA has sufficient
evidence to prove that a railroad or
individual has falsified a program
required under this section or a record
kept for such a required program, then
that railroad or individual could be
cited by FRA for a willful violation of
the underlying section. The penalty
assessed would be greater than a typical
civil penalty assessment. See 49 CFR
217.5 and app. A to Part 217. Thus, even
with the deletion of this proposed
paragraph, FRA retains the authority to
assess civil penalties for falsification of
the required records pertaining to this
section. Two, the activity at issue is also
prohibited by criminal law. See, e.g., 49
U.S.C. 21311. Consequently, FRA has
decided to remove this paragraph from
the final rule and would expect that the
existing criminal law and this final rule
will provide sufficient disincentives for
railroads and individuals to complete
the programs and records required
under this part without falsifying,
mutilating, or destroying such a record.
Proposed paragraph (i), which has
been redesignated as paragraph (h)
requires that FRA have some specific
oversight mechanism for disapproving a
railroad’s program of operational tests
and inspections. It also requires
minimum procedures and structure for
the review process. The paragraph
requires that the Associate
Administrator for Safety only
disapprove programs required by this
section for cause stated. As the
disapproval decision is made for cause,
it is significant for the railroad to
understand exactly why FRA is
disapproving the program; thus,
notification of such disapproval will be
made in writing and specify the basis
for the disapproval decision. If the
Associate Administrator for Safety
disapproves the program, the railroad
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 8462 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations
has 35 days from the date of the written
notification of such disapproval to
either (1) amend its program and submit
it to the Associate Administrator for
Safety for approval, or (2) provide a
written response in support of the
program to the Associate Administrator
for Safety. If the railroad chooses the
second option to defend the allegedly
defective program, the Associate
Administrator for Safety will inform the
railroad of FRA’s final decision in
writing. Although the rule is silent
regarding whether a railroad may
request an extension, FRA intends for
the Associate Administrator for Safety,
as the agency’s decision-maker, to have
the flexibility to decide procedural
issues, such as having the ability to
grant or deny requests for extensions of
time, as the issues arise. The Associate
Administrator for Safety renders a final
decision in writing which will specify
the terms and conditions under which
the program will be considered
approved or disapproved. If the decision
denies the railroad’s request in whole or
in part, FRA intends for the railroad to
amend its program and submit it to the
Associate Administrator for Safety for
approval within 35 days of the final
decision as that is the period of time
accorded for amending programs when
a railroad chooses not to appeal the
disapproval. Again, a railroad may
request an extension of time to amend
its program and submit it to the
Associate Administrator for Safety for
approval, and FRA intends for the
Associate Administrator for Safety to
have the flexibility to decide whether to
grant or deny such procedural requests.
Although enforcement action is always
discretionary, FRA believes that
enforcement action is warranted when a
railroad fails to appropriately and
timely amend its program; for this
reason, FRA is requiring in paragraph
(h)(2) that a failure to submit the
program with the necessary revisions to
the Associate Administrator for Safety
will be considered a failure to
implement a program under this part.
The approach in paragraph (h)
recognizes that FRA will want to review
such written programs during audits or
investigations and that FRA should have
the authority to request changes to the
program if it does not meet the
minimum requirements of this rule.
Although FRA retains the authority to
review in detail each railroad’s program,
FRA is not requiring that each railroad
pwalker on PROD1PC71 with RULES3
submit its program for prior review and
approval. Rather, FRA intends to review
the programs of the major railroads over
a multi-year cycle to determine if they
are effective. In BLET’s written
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comment, it requested that FRA
reconsider this approach and instead
advocated that each railroad be required
to submit its operational tests and
inspections program for FRA’s explicit
approval. BLET’s reason for requiring a
submission and approval process is that
employees need to be afforded no less
than the highest degree of assurance that
a railroad’s compliance monitoring is
appropriate if the employee can be held
responsible for noncompliance. A
similar comment was raised by UTU in
the context that FRA should prohibit
testing officers from performing
operational tests that violate operating
rules or endanger employees. While
FRA appreciates these comments, we
are not adopting them for the following
reasons. Although FRA has found
deficiencies with some railroads’
programs from time-to-time, if a railroad
has a program, it will typically contain
all the requirements necessary to be
deemed approved. Most problems with
a program cannot be determined until
an audit or investigation reveals
inadequacies. Thus, a mandatory
approval process is both a drain on the
agency’s resources and also unlikely to
reveal many programmatic deficiencies.
The best time to request a programmatic
change is when an inadequacy is
revealed. However, the NPRM did not
provide for specific procedures for FRA
to take place when an inadequacy was
identified. The rule has been
strengthened to provide for specific
oversight authority vesting with the
Associate Administrator for Safety. It is
also helpful to remember that FRA is
requiring railroad testing officers to
conduct tests and inspections in
accordance with a railroad’s program,
and that it is implicit that an improperly
conducted test shall not be considered
a valid test toward satisfying any
requirement under the program.
In the proposed rule, FRA solicited
comments as to whether the final rule
should require each railroad to instruct
its employees on operating rules at least
once every three years. BLET submitted
a comment supporting triennial
qualification of employees on all
Federalized operating rules. As BLET
points out, adding this requirement
would merely expand the proposal to
require each railroad to qualify its
employees on Part 218, subpart F in this
chapter, and many employees are
already covered as locomotive engineers
are currently required to be qualified
every three years pursuant to
§ 240.210(c) of this chapter. FRA would
add that a triennial operating class is the
typical standard requirement on most
railroads today. However, FRA also
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recognizes that our definition of
qualified might be deemed to lead to
more extensive or rigorous instruction,
training, and examination than is
currently in practice. While that might
be a positive development, FRA
recognizes that there might be costs
involved with assuring the additional
qualifications are met, and FRA has not
found a correlation between the lack of
operating rules training in general and
accidents/incidents. FRA’s decision
only requires such periodic instruction
as it applies to those operating rules that
would be required by part 218, subpart
F because the rules set out in that
subpart do have a direct correlation to
a substantial number of accidents/
incidents and other noncompliance
detected by FRA. See § 218.95(a)(5).
FRA will consider implementing
another rulemaking if noncompliance
with other operating rules are identified
that are causing a significant number of
accidents/incidents. Based on available
information, the current requirement,
that each railroad periodically instruct
each employee on the meaning and
application of the railroad’s operating
rules, appears to be sufficient. See
§ 217.11.
Section 217.11 Program of Instruction
on Operating Rules; Recordkeeping;
Electronic Recordkeeping
FRA did not propose any changes to
this section in the NPRM; however, after
the NPRM’s publication we realized that
it contained a cross-cite to § 217.9(e)(1)
through (e)(5), which has been
redesignated as § 217.9(g)(1) through (5).
This citation change is the only
amendment to this section.
Part 218—[Amended]
Section 218.4 Preemptive Effect
This section informs the public of
FRA’s intention and views on the
preemptive effect of the rule. The
preemptive effect of this rule is broad,
as its purpose is to create a uniform
national standard. Section 20106 of
Title 49 of the United States Code
provides that all regulations prescribed
by the Secretary related to railroad
safety preempt any State law,
regulation, or order covering the same
subject matter, except an additional or
more stringent provision necessary to
eliminate or reduce an essentially local
safety or security hazard that is not
incompatible with a Federal law,
regulation, or order and that does not
unreasonably burden interstate
commerce. Section 20106 permits State
tort actions arising from events or
activities occurring on or after January
18, 2002, for the following: (a) A
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violation of the Federal standard of care
established by regulation or order issued
the Secretary of Transportation (with
respect to railroad safety, such as these
regulations) or the Secretary of
Homeland Security (with respect to
railroad security); (b) a party’s violation
of, or failure to comply with, its own
plan, rule, or standard that it created
pursuant to a regulation or order issued
by either of the two Secretaries; and (c)
a party’s violation of a State standard
that is necessary to eliminate or reduce
an essentially local safety or security
hazard, is not incompatible with a law,
regulation, or order of the United States
Government, and does not unreasonably
burden interstate commerce. Nothing in
section 20106 creates a Federal cause of
action on behalf of an injured party or
confers Federal question jurisdiction for
such State law causes of action. The
NPRM language has been amended to
reflect the changes made to Section
20106.
Only one comment addressed this
paragraph and that comment has been
discussed in the preamble. See IV.
General Comments/Major Issues, C.
Preemptive Effect.
Section 218.5 Definitions
FRA is amending the definition of
flagman’s signals in order to eliminate
a reference to ‘‘torpedoes.’’ Torpedoes
are antiquated signaling devices which
have fallen into disuse in the industry.
Likewise, we are amending § 218.37,
which refers to this definition and the
placing of torpedoes when providing
flag protection.
FRA is also amending the definition
of locomotive to explain that this
particular definition of locomotive does
not apply to subpart F. The definition of
locomotive in this section is a more
mechanically-minded definition than
the definition contained in 49 CFR
218.93. This definition continues to
apply to the requirements in part 218,
with the exception of subpart F.
Section 218.37 Flag Protection
FRA is eliminating references to
‘‘torpedoes’’ as these are antiquated
signaling devices which have fallen into
disuse in the industry. The former rule
required each railroad to have in effect
an operating rule which complies with
this section, and thus contains
references to the use of torpedoes, even
though the railroad could meet other
flagging requirements without ever
needing to carry or use torpedoes. In the
pwalker on PROD1PC71 with RULES3
former section, there are two paragraphs
that reference torpedoes. Former
paragraph (a)(1)(iii) states, in part, that
‘‘[w]hen a train stops on main track, flag
protection against following trains on
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the same track must be provided as
follows: A crew member with flagman’s
signals must immediately go back at
least the distance prescribed by
timetable or other instructions for the
territory, place at least two torpedoes on
the rail at least 100 feet apart and
display one lighted fusee.’’ The
language in italics has been deleted by
this final rule. Former paragraph
(a)(1)(iv) states that ‘‘[w]hen required by
the railroad’s operating rules, a forward
crew member with flagman’s signals
must protect the front of his train
against opposing movements by
immediately going forward at least the
distance prescribed by timetable or
other instructions for the territory
placing at least two torpedoes on the
rail at least 100 feet apart, displaying
one lighted fusee, and remaining at that
location until recalled.’’ Again, the
language in italics has been deleted by
this final rule. Elimination of the
references to torpedoes does not
eliminate the requirement that each
railroad have in effect an operating rule
that complies with the requirements in
this section. Furthermore, FRA has
made minor amendments to make the
regulatory language gender neutral.
Subpart F—Handling Equipment,
Switches, and Fixed Derails
Section 218.91 Purpose and Scope
As previously explained in the
supplementary information, FRA has
identified that noncompliance with a
small number of railroad operating rules
has caused an inordinate percentage of
total human factor caused accidents.
FRA’s purpose is first to establish clear
and unambiguous procedures that will
provide for the safety of railroad
employees and the public. In the RSAC
Working Group discussions that
preceded the preparation of the
proposed rule, FRA noted significant
variation in basic safety procedures
followed on participating railroads.
Although some variation is necessary to
address local conditions, the presence of
extensive joint operations in the railroad
industry makes it essential that certain
common procedures apply. Joint
operations are not new to the railroad
industry, as evidenced by the historic
role of terminal companies. However,
the practice has more recently expanded
through mergers and consequent awards
of trackage rights and through the
creation of hundreds of small railroads
that are often provided access to larger
railroad’s facilities to facilitate efficient
interchange of cars.
In order to ensure compliance with
operating rules, it is essential that they
be consistent, commonly understood,
PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
8463
and applied in a predictable manner.
Further, it must be understood that the
rules may not be circumvented at the
whim of a supervisor or employee to
hasten completion of the work. The
rules in this subpart are intended to
support these purposes.
In addition, making these rules
mandatory from a Federal standpoint
provides an enforcement mechanism to
discourage noncompliance.
FRA is standardizing this small
number of railroad operating rules by
establishing minimum requirements.
The minimum requirements are based
on accepted best practices and rules
currently in use. Of course, railroads
may choose to prescribe additional or
more stringent requirements.
FRA received one comment regarding
this section. AAR proposed that FRA
add a paragraph that exempts
employees subject to blue signal
protection under subpart B of this
chapter, or to employees moving
equipment within the confines of a
locomotive repair or servicing area, or a
car shop repair track area. FRA
disagrees with AAR’s premise that
employees performing these functions
do not need to be qualified on the
requirements of this subpart. It is
absolutely imperative that all employees
operating a hand-operated switch or
fixed derail understand how to properly
operate and determine the position of
such switches and derails. We do not
share AAR’s belief that there is any
conflict with the blue signal
requirements of this chapter.
Additionally, FRA did carve out one
exception under proposed
§ 218.103(g)(2)(a), redesignated as
§ 218.107(c)(1)(i), so that hand-operated
crossover switches could be left out of
correspondence when used to provide
blue signal protection under § 218.27.
FRA has also clarified in the title to
this subpart, the purpose and scope
section, and in § 218.109, that this
subpart applies to ‘‘fixed’’ derails and
does not apply to ‘‘portable derails.’’ In
the NPRM, FRA did not distinguish
between the two general types of
derails, i.e., fixed and portable. FRA is
using the term ‘‘fixed derails’’ to
contrast it with derails that are portable.
Portable, or temporary, derails can
easily be transported and applied at
different locations throughout the day in
order to protect workers and equipment
as needed. Fixed, or permanent, derails
cannot be easily transported because
they are typically affixed to the track
structure in some manner. Fixed derails
are normally found prior to entering a
locomotive servicing area or car shop
repair area, where they are used to
protect workers in those areas from
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encroachment by unauthorized
movements of rolling equipment. Fixed
derails are also used on industry tracks
to prevent rolling equipment from
unintentionally rolling out onto a main
track.
Section 218.93 Definitions
The definitions in this section only
have applicability to this subpart so it
should be easier for the reader to locate
each definition in this section rather
than in subpart A—General, § 218.5.
Several definitions are consistent with
other definitions of these terms in this
chapter. These terms are Associate
Administrator for Safety, employee,
locomotive, pedestrian crossing,
qualified, and roadway worker. In an
effort to be as clear as possible, FRA is
including definitions of these terms in
this subpart for the benefit of anyone
unfamiliar with these terms.
FRA is defining the term clearance
point because this term is necessary to
describe an important concept that is
used several times in this subpart.
‘‘Clearance point’’ means the location
near a turnout beyond which it is unsafe
for passage by equipment or a person
riding the side of a car on an adjacent
track. While clearance points may be
identified by marks on the rail, signs, or
other visible identifiers, these points are
often referring to an approximate
location that will need to be deduced by
an employee. Railroads shall implement
procedures for identifying such
approximate locations and for waiting to
line hand-operated switches away until
equipment that has entered the track has
passed this point. See §§ 218.101(c) and
218.103(d). Without a definition of
clearance point, it would be difficult to
define what is meant by ‘‘foul or fouling
a track.’’ Through the proper
identification of clearance points,
employees can avoid collisions and
personal injury to other employees
riding the sides of cars.
The definitions for correspondence of
crossover switches and crossover are
interrelated, and should be familiar to
people working in the railroad industry.
FRA defined the term ‘‘correspondence
of crossover switches’’ in the NPRM and
no comments were filed suggesting that
the industry was confused by the term.
Crossover switches are considered in
correspondence under two conditions:
(1) When it is desired to travel from one
adjacent track to another, both crossover
switches would need to be lined for the
pwalker on PROD1PC71 with RULES3
crossover movement; or (2) if no
crossover movement is desired or
intended, both crossover switches must
be lined for the straight-away
movement, i.e., straight track.
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FRA is adding a definition of
crossover because, while drafting this
final rule, we realized that the industry
has not settled on one common
definition of the term. Some railroads
define the term crossover in their rule
books as ‘‘a combination of two
switches that connect two adjacent
tracks.’’ One railroad adds the following
sentence to that definition: ‘‘When
lined, this switch combination allows
movements to cross from one track to
the other.’’ Other railroads simply
define a crossover as ‘‘a track
connection between two adjacent
tracks.’’ Meanwhile, Christoper
Schulte’s Dictionary of Railway Track
Terms, (3d ed. 2003), defines a
crossover as ‘‘a pair or group of turnouts
which allows rolling stock and on-track
equipment to cross from one track to
another.’’ Still another dictionary of
railway terms, Don Dressel’s Railroad
Terminology, Definitions, & Slang, (4th
ed.1994), defines a crossover as ‘‘two
turnouts * * * connecting two nearby
and usually parallel tracks.’’ FRA is
aware that there are many variations of
track configurations that may resemble
a crossover, or may fall generally within
the parameters of one of the definitions
referenced above but, as a practical
matter, are not crossovers in the purest
sense that FRA and most of the industry
understand and intend the term to
mean. Therefore, in the application of
this subpart, the term crossover applies
to a track connection between two
adjacent, but not necessarily parallel,
tracks, consisting of two switches,
which is intended to be used primarily
for the purpose of crossing over from
one track to another. Categorically
excluded from this application are track
connections between adjacent tracks
that, while they may physically permit
equipment to pass from one track to
another, are of sufficient length so as to
be able to store or hold rolling
equipment on them, or to set out bad
order cars, or to store track equipment,
or for any other purpose than solely for
crossover movements. Of course, it is
possible to have a crossover that holds
just a few pieces of rolling equipment
and that is not typically used for
allowing other movements to pass or
used for storage, but yet is used for such
purpose. In response to these atypical
situations, FRA intends to use its
enforcement discretion on a case by case
basis.
A definition for foul or fouling a track
is provided because this term is
necessary to describe an important
concept that is used several times in this
subpart. Foul or fouling a track means
rolling equipment or on-track
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maintenance-of-way equipment is
located such that the end of the
equipment is between the clearance
point and the switch points of the
switch leading to the track on which the
equipment is standing. The potential for
an accident is great when equipment is
left standing on a track in such a
manner that a movement on an adjacent
track would collide with it; this is
especially true when the standing
equipment is left so that it appears that
equipment might be able to pass by on
the adjacent track. Equipment, or a
person riding a side of a car, on adjacent
track could strike fouling equipment.
This type of accident is usually a side-
swipe type accident and the severity of
the accident depends on the factors
involved; e.g., the factors determining
severity include, but are not limited to,
the speed of the moving equipment, the
type of equipment struck, the contents
of the cars struck, whether a person was
riding a car and whether an occupied
locomotive struck the equipment. The
issue of foul or fouling a track is
addressed in § 218.101 titled ‘‘Leaving
Rolling and On-Track Maintenance-of-
Way Equipment in the Clear,’’ because
certain scenarios of fouling are
avoidable and FRA believes that each
railroad should have an operating rule
that prohibits this dangerous practice.
The final rule was amended from the
NPRM to clarify an issue raised during
the RSAC process. FRA was asked to
clarify what it meant by the term ‘‘any
part of the equipment.’’ Some
commenters questioned whether FRA
would consider a high-and-wide load,
or a shifted load of lumber protruding
from the side of a flat car, as ‘‘fouling’’
an adjacent track even though the end
of the car might still be within the
clearance point of the switch. FRA’s
experience has been that when there are
high-and-wide or shifted loads,
railroads have implemented proper
procedures for employees to take
appropriate action and address the
safety concerns. The situation FRA
intends to address in this rule by
defining ‘‘foul and fouling’’ occurs
when the end of a car itself is fouling
and struck by a movement on an
adjacent track; the reason for FRA’s
narrower focus is because that situation
is the type of accident described
universally in the accident/incident
reports filed with FRA that are
categorized as ‘‘cars left foul’’ or ‘‘car(s)
shoved out and left out of clear.’’ By
referring to the end of the equipment,
FRA’s regulation is patterned after the
long-standing operating rule, and we
would hope make it easier to
understand for employees. This
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clarification is based on an RSAC
recommendation. FRA will consider
initiating a new rulemaking amending
the definition of ‘‘foul or fouling’’ if
future data reveals that high-and-wide
or shifted loads become an increasing
explanation for accidents/incidents.
FRA defines hand-operated switch
broadly to identify any type of switch
when operated by manual manipulation
including traditional hand-operated
(rigid) switches, power switches, and
spring switches. Excluded from this
definition are switches operated by
push button or radio control if the
switch is protected by distant switch
indicators, switch point indicators, or
other visual or audio verification that
the switch points are lined for the
intended route and fit properly. The
definition includes all switches which
are normally operated by manual
manipulation of the switch lever. As
FRA has defined this term, ‘‘hand-
operated switch’’ includes switches
operated by push button or radio
control, but only when such switch is
not protected by distant switch
indicators, switch point indicators, or
other visual or audio verification that
the switch points are lined for the
intended route and fit properly. For
example, the two types of indicators
provide a visual indication of the switch
alignment; and other electronic
advancements are capable of sending a
message to a receiver indicating the
switch’s alignment; such that a visual
check by an employee to determine that
the switch is properly aligned would be
redundant after receiving an electronic
message that has already served that
purpose. For switches that use push
button or radio control technology, the
‘‘manual manipulation’’ aspect is that
the employee is required to throw the
switch; and the electronic aspect of the
switch manipulation is primarily an
option for avoiding personal injuries
due to the throwing of a switch lever.
FRA does not intend to address issues
related to power-assisted switches
operated from central consoles, whether
within or outside of signaled territory,
when so operated.
With regard to the definition of hand-
operated switch, several members of the
RSAC Operating Rules Working Group
requested that FRA explain which
employees would be required to comply
with the requirements for hand-operated
switches. FRA explained that the
definition intended to characterize the
types of switches normally operated by
pwalker on PROD1PC71 with RULES3
operating employees, whether or not
there is some electronic aspect to the
operation of the switch. Such operating
employees include, but are not limited
to, conductors, brakemen, trainmen,
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switchmen and remote control
operators. On rare occasions, a
conventional locomotive engineer might
operate a switch, although, with push
button and radio control technology, it
is possible that locomotive engineers
may find themselves operating a greater
number of switches in future years.
Maintenance-of-way and mechanical
employees also have occasion to operate
these switches. That being said, the rule
is focused on the type of switch that is
operated and not the job title of the
person operating; thus, regardless of a
person’s job classification, a person who
operates a switch fitting the definition
of a ‘‘hand-operated switch’’ is required
to comply with the requirements of this
subpart.
BRS commented that the proposed
definition of hand-operated switch was
problematic. In general, the view raised
by BRS, in comments and discussions
during the RSAC working group, was
that the definition did not accurately
describe what signalmen would
consider a ‘‘hand-operated switch.’’ In
BRS’s view, FRA’s definition included
other types of switches and was thus
over-inclusive. BRS also raised a
concern that if FRA has a definition of
‘‘hand-operated switch’’ in this subpart,
that this definition might eventually be
adopted by FRA in other parts of the
chapter. FRA gave great consideration to
this request and attempted to draft the
definition according to the preferences
expressed by BRS in its comments;
however, FRA has decided not to amend
the rule for the following reasons. In
attempting to craft an alternative that
defined hand-operated switch more
narrowly, FRA found itself having to
create and define at least three other
terms as well (e.g., power switch, dual-
control power switch, and manually-
operated switch), in order to cover all of
the types of switches FRA wanted the
rule to cover. In our view, the regulation
would be more complicated with four
definitions when one will do. The
definitions located in this section are
explicitly identified as to be ‘‘used in
this subpart;’’ any rule that FRA
promulgates concerning the
maintenance of different types of
switches will be written in a separate
part or subpart of this chapter and may
require more technically detailed
descriptions. Certainly, FRA is not
required to maintain this definition of
hand-operated switch throughout all of
its regulations if it requires greater detail
in other contexts. Considering all of the
different crafts of workers, signalmen
should have the least amount of
difficulty understanding how to
properly operate and verify switches.
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8465
This regulation is geared more for the
perspective of operational railroad
workers who simply need to know that
no matter what the signal department
calls the switch, FRA requires it to be
treated as the equivalent of a hand-
operated switch if it is unprotected by
any type of indicator or verifier, and has
some manual operation aspect to it—
regardless of whether that manual
operation is by push button or radio
control. BRS’s concern is a valid one,
but is one that is likely to perplex more
signalmen than operations employees.
Finally, we make the observation that
EO 24 was issued without ever defining
what FRA meant by a ‘‘hand-operated
switch’’ in non-signaled territory; this
emergency order, which this final rule
supercedes, has been in effect since
November 22, 2005, without any person
requesting interpretive guidance on this
term and yet FRA’s experience has been
that every railroad has applied EO 24 to
those types of switches defined by the
‘‘hand-operated switch’’ definition FRA
has promulgated in this rule.
Finally, BRS requested that FRA use
this rulemaking to regulate the design,
inspection, and maintenance of the
signals that are protected by distant
switch indicators, switch point
indicators, or other visual or audio
verification, i.e., all those non-hand-
operated switches. FRA agrees that use
of substandard technology can lead to
inappropriate reliance on audible or
visual indications that a switch is in the
desired position and locked when it is
not properly aligned and secured. FRA
further notes that failure to provide
fouling circuits in cases where
employees cannot visually confirm that
no equipment is out to foul the intended
route could substantially undercut the
redundant safety protections intended
by this rule. Finally, we acknowledge
that this rule fails to adequately address
the ability of employees to confirm that
conflicting movements are not
approaching a switch location when
radio controlled switches are employed
and approach circuits are not in place.
FRA also agrees with BRS that there is
a safety concern if any railroad is failing
to regularly inspect or maintain these
‘‘other signal arrangements.’’ However,
FRA believes any such regulation of
these other signal arrangements should
be part of a separate rulemaking, not one
intended to solely focus on railroad
operating rules and practices. FRA has
not yet initiated a rulemaking in this
area, but held a technical conference on
April 19, 2007, in Washington, DC to
address the technical aspects of this
issue (72 FR 14641; March 28, 2007).
Interested parties may wish to file
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 8466 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations
comments to Docket No. FRA–2007–
27623. Until FRA is able to provide
suitable regulations to address
technology being employed to perform
functions described in this final rule,
and similar functions, railroads should
exercise caution and prudence in
implementing that technology. FRA was
encouraged to note that many
participants in the Special Safety
Inquiry appeared sensitive to this need.
FRA defined highway-rail grade
crossing in the NPRM, but has refined
the definition for purposes of this final
rule. The definition in the NPRM
mirrored the definition in § 234.5 of this
chapter. FRA originally intended to try
and keep the definition simple by
carrying the same definition for this
term used in the Grade Crossing Signal
System Safety rule found at 49 CFR part
234; however, upon further reflection,
FRA realized that the proposed
definition would include many ad hoc
crossings on private property that are
often created and removed in short
order. Some of these temporary
crossings may also be illegal or built
without consent of the railroad that
owns the track. As the term ‘‘highway-
rail grade crossing’’ is used in this rule
in the context of protecting shoving or
pushing movements, the proposed
definition would have required that a
railroad and its employees be
responsible for determining that such ad
hoc crossings are protected during
shoving or pushing movements. It is
conceivable that the proposed
requirement could have created
enforcement dilemmas, especially when
a crossing is created without any
notification to the railroad or train crew,
or the operation occurs at night, on a
curve, or there is some other reason that
the ad hoc crossing would be difficult
to spot without prior knowledge of its
existence.
Consequently, to avoid setting this
trap, FRA has changed the definition to
exclude the type of ad hoc crossings that
are not part of the DOT National
Highway-Rail Grade Crossing inventory
or are unmarked by signage indicating
the presence of an at-grade crossing. If
a crossing has a DOT inventory number
but is not an ‘‘at-grade crossing,’’ the
crossing does not fall within this
definition. In contrast, if a crossing does
not have a DOT inventory number, but
has signage (e.g., crossbuck or stop sign)
indicating the presence of an at-grade
crossing, the crossing would fall within
the definition. Although it is possible
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that a private property owner might
quickly construct a crossing that
included appropriate signs of the newly
established at-grade crossing without
the track owner’s permission, it would
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seem ill-advised to absorb such
expenses without proper permission;
thus, we would expect that at nearly
every crossing with crossbucks, stop
signs, or other appropriate signage
indicating the presence of an at-grade
crossing, the railroad will be able to
identify these crossings and alert its
employees of the need to protect such
crossings during shoving or pushing
movements pursuant to § 218.99.
FRA did not propose, but has added,
a definition of industry track in order to
refine the requirements in § 218.101
‘‘Leaving Rolling and On-Track
Maintenance-of-Way Equipment in the
Clear.’’ Industry track is defined as a
switching track, or series of tracks,
serving the needs of a commercial
industry other than a railroad. Thus, it
should be absolutely clear that a
railroad yard does not contain industry
track, even though, admittedly, there
might be industry track connected to the
yard. The RSAC recommended this
definition as it distinguishes industry
track from other types of tracks used for
similar purposes (e.g., yard tracks, team
tracks, sidings, etc.). The definition
RSAC recommended, and which is the
definition FRA is promulgating, is the
same definition FRA uses in its Guide
for Preparing Accident/Incident
Reports.
FRA has maintained from the NPRM
a definition of locomotive that is
consistent with the definition contained
in 49 CFR 240.7. FRA has promulgated
this definition because the shoving and
pushing requirements of this subpart
apply to certified locomotive engineers
who may be operating vehicles that
meet this definition, but do not fall
within the more mechanically-minded
definition used elsewhere in this
chapter and part. FRA is aware that this
part already contains a more
mechanically-minded definition, see
§ 218.5, and intends that the definition
used in this subpart supercede that
other definition. To clarify that there are
two definitions of this term with
different applicability, FRA has added
language to the definitions to clarify
which definition is applicable to
subpart F and which is applicable to the
part ‘‘except for purposes of subpart F.’’
FRA has added a definition of
qualified which is identical to the
definition added for 49 CFR 217.4 in
this rule. A person cannot be qualified
unless he or she has successfully
completed all ‘‘instruction, training, and
examination’’ programs required by
both the railroad and this subpart.
Where FRA specifies that a qualified
employee is to do the work, it is because
we want some assurance that the person
either has actual knowledge, or may
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reasonably be expected to have
knowledge, such that there is no
question the person should be able to do
the work in accordance with the
railroad’s operating rules. It is
imperative that only employees who
have been qualified should do such
work that the rule restricts to qualified
employees because a railroad that
allows unqualified employees to do
such work is increasing the likelihood
of an accident/incident.
FRA defines remote control operator
merely to aid in the clarification of
shoving or pushing movement
requirements involving remote control
operations versus the requirements for
conventional operations. Remote control
operators are ‘‘locomotive engineers’’
per FRA’s regulations found at 49 CFR
part 240. Traditional engineers, i.e.,
those persons qualified to operate
locomotives in a conventional manner,
may be trained on remote control
equipment—and are thus also certified
for remote control operations; in that
situation, the term remote control
operator applies to the conventional
engineer. Hence, the term ‘‘remote
control operator’’ is not limited to those
persons who only are certified to
operate remote control locomotives, but
to anyone certified to operate such
locomotives. The industry uses the
shorthanded term ‘‘remote control
operator’’ to refer to ‘‘remote control
locomotive operators’’ and, because
FRA solicited but did not receive any
comments to the contrary, we trust that
no one is confused by the dropping of
the reference to ‘‘locomotives’’ in the
terminology. FRA received one
comment from AAR raising two
concerns with regard to this definition.
First, AAR correctly noted that the
proposed definition mistakenly cited
§ 240.5 when § 240.7 is the accurate cite;
FRA has corrected this mistake. Second,
AAR suggested an alternative definition
of remote control operator because it
stated that the industry does not
normally describe such operators as
locomotive engineers. AAR’s suggestion
for an alternative definition eliminates
the term locomotive engineer from the
definition, and refers to the operator as
‘‘an employee certified by a railroad to
operate remote control locomotives
pursuant to part 240 of this chapter.’’
FRA rejects AAR’s second suggestion
because we do not agree with the
distinction AAR is trying to make.
Functionally, a locomotive engineer
operating from a control stand in a cab
and a remote control locomotive
operator play the same role in switching
operations, and, in some cases, they
play the same role in train movements.
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Thus, we consider it fundamental to
both part 240 of this chapter and this
final rule that a remote control operator
be considered a locomotive engineer.
FRA defines remote control zone in
order to permit a shoving or pushing
operation that is safe and yet protected
differently from conventional shoving or
pushing operations. This zone is a term
adopted by railroads that designate one
or more segments of track, typically in
a yard, where remote control operators
can safely switch cars without
continually determining that the track is
clear for the movement, as long as a
prior determination has been made.
Although the location of a remote
control zone may be permanent, the
regulation requires certain conditions to
be met each time a zone is used for its
intended purpose of allowing an
operation without an employee assigned
to protect the leading end in the
direction of movement, i.e., the pull-out
end, of the remote control movement.
See § 218.99(d).
FRA has noticed some confusion
between the terms ‘‘remote control
zone’’ and ‘‘remote control area.’’ A
‘‘zone’’ is an integral part of remote
control operations, whereas an ‘‘area’’
describes for informational purposes
only a location within which remote
control operations occur and does not
directly affect such operations. The
‘‘area’’ is usually created by putting up
signs to warn employees working in the
vicinity that moving locomotives may
be unmanned. The ‘‘area’’ is typically
larger than the ‘‘zone’’ as it covers
anywhere the remote control operation
could take place. It is important to
create these areas so that employees are
warned to use care in moving around
the yard with the knowledge that using
hand signals to convey a message to a
moving locomotive may be in vain as
there may not be an engineer in the cab
to see them. Thus, these terms do not
mean the same thing and should not be
used interchangeably.
FRA defines roadway maintenance
activity to distinguish between those
duties prescribed for roadway workers,
including movement of on-track
maintenance-of-way equipment other
than locomotives, and other types of
duties that a roadway worker may
perform which are not so limited. In
other words, a person designated a
‘‘roadway worker’’ may engage in an
activity that is not a ‘‘roadway
maintenance activity.’’ This term is used
to describe an exception to the general
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shoving and pushing requirements
found in § 218.99(e)(3).
FRA defines roadway worker in
charge in order to provide a generic title
to the roadway worker who is in charge
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of a roadway work group. The
designation of such a worker enables
FRA to require leaving main track
switches in such a person’s charge as
well as being the conduit for switch
alignment information when other
workers in the group have operated
switches. The communication among
group members is similar in importance
to the communication that is required
between train crewmembers. FRA
intends this term to have the same
general usage as in subpart C of 49 CFR
part 214.
FRA has added a definition of the
term siding to describe an auxiliary
track, adjacent and connected to a main
track, used for meeting or passing trains.
In § 218.101, the term ‘‘siding’’ is used
in connection with an exception to
leaving equipment in the clear. FRA
understands that, in conversational or
common usage, the term ‘‘siding’’ can
also be taken to mean a customer’s
siding or an industry’s siding.
Meanwhile, the regulation exempts
operations from abiding by the
requirements for leaving equipment in
the clear on industry tracks beyond the
clearance point of the switch leading to
the industry. By adding the definition of
the term ‘‘siding,’’ FRA intends to
clarify the narrow meaning of the term
in this subpart from its broader,
conversational usage.
FRA has added a definition of
signaled siding to this rule to describe
a siding within a traffic control system
(TCS) territory or within interlocking
limits where a signal indication
authorizes the siding’s use. In the
NPRM, this definition was used to
define a controlled siding, but, upon
further reflection, FRA realizes that this
definition actually defines a ‘‘signaled
siding.’’ The NPRM used the term
‘‘controlled siding’’ in its exceptions to
making a shoving or pushing movement
on main tracks and controlled sidings,
without requiring point protection, if
certain conditions or prerequisites were
met. The reason for the change to
signaled siding is because the term
controlled siding is not consistently
applied to mean the same thing on all
railroads. The term signaled siding,
however, more accurately captures
FRA’s meaning and intent, which is a
siding that is circuited (bonded)
throughout its length. FRA also changed
the term ‘‘centralized traffic control
(CTC)’’ to ‘‘traffic control system (TCS)’’
to use the generic term rather than one
specific brand of TCS.
FRA defines switchtender because a
few railroads still utilize a worker with
responsibilities for lining specific
switches for trains and a person with
this position is not a crewmember. FRA
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8467
defines this term because we want to
acknowledge that this type of worker
may be qualified to operate switches, so
switches can be safely left in a
switchtender’s charge. FRA has not
defined ‘‘switchtender’’ in order to
suggest that railroads create such
positions or that there is any sort of
requirement to employ switchtenders.
FRA defines the term track is clear to
describe the required condition of the
track prior to initiating or continuing a
shoving or pushing movement under
§ 218.99. If the four conditions for
determining that the track is clear are
met, then if an accident occurs, it is
unlikely to be the fault of the person
making the determination. That is,
when the portion of the track to be used
is clear there should not be any rolling
equipment, on-track maintenance-of-
way equipment or conflicting on-track
movements that could collide with the
shoving or pushing movement; there
should be no intervening motor-vehicles
or pedestrians to strike as all
intervening public highway-rail grade
crossings, private highway-rail grade
crossings outside the physical confines
of a railroad yard, pedestrian crossings
outside of the physical confines of a
railroad yard, and yard access crossings
are to be protected; there should be no
intervening switches or fixed derails to
run through or over as these devices
should all be properly lined for the
intended movement; and, the shoving or
pushing movement should not
accidentally collide with cars on a
connecting track if the portion of the
track to be used has sufficient room to
contain the equipment being shoved or
pushed.
Within the definition of track is clear
are the conditions for determining that
intervening public highway-rail grade
crossings, private highway-rail grade
crossings outside the physical confines
of a railroad yard, pedestrian crossings
outside of the physical confines of a
railroad yard, and yard access crossings
are protected. As shoving or pushing
movements typically occur without a
locomotive engineer in a locomotive
leading the movement, it is vital to
protect crossings to prevent easily
avoidable accidents. The definition for
track is clear considers the crossing
protected if the gates are in the fully
lowered position, and have not been
observed or known to be
malfunctioning. Whether or not there
are working gates, a crossing may be
protected by stationing a designated and
qualified employee at the crossing who
has the ability to communicate with
trains. A third option for protecting a
crossing would be available when
crossings are equipped only with
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flashing lights or passive warning
devices; in that situation, the crossing
would be considered protected when it
is clearly seen that no traffic is
approaching or stopped at the crossing
and the leading end of the movement
over the crossing does not exceed 15
miles per hour.
In response to AAR’s comment and
input during the RSAC process, FRA
has modified the definition of ‘‘track is
clear’’ from the NPRM in several places.
FRA has removed the requirement that
a crewmember or other qualified
employee make a visual determination
because that requirement is already
found in redesignated § 218.99(b)(3),
formerly paragraph (b)(2). FRA has
changed the term ‘‘conflicting
movements’’ in the proposed first
numbered condition to ‘‘conflicting on-
track movements’’ in the final rule. The
purpose for this change is to reflect that
the track can be considered clear even
if maintenance-of-way equipment is in
the vicinity of the track to be shoved or
pushed onto; instead, if the equipment
is not on a track at the time the move
is commencing or continuing, it is not
considered a conflicting movement that
would prevent the movement from
being initiated. As discussed previously,
a definition of ‘‘yard access crossing’’
has been added to ensure that railroads
protect the crossings in railroad yards
that someone other than an employee is
likely to use. FRA has amended
paragraph (2)(i) to reflect the proposed
section analysis that crossings are
protected when the crossing gates are in
the fully lowered position but only
when the gates have not been observed
or known to be malfunctioning; FRA
notes that the employees involved in the
shoving or pushing move in which a
determination that the track is clear is
required need to share any information
regarding malfunctioning grade
crossings and may collectively be
responsible for improperly protecting an
observed or known to be malfunctioning
crossing. Finally, FRA has added the
qualifier in the third condition that any
intervening ‘‘fixed’’ derails, as well as
intervening switches, shall be lined for
the intended movement when
determining that track is clear; although
FRA would also expect employees to be
on the lookout for portable derails
before determining that the track is
clear, there certainly is no excuse for
operating over an intervening fixed
derail.
FRA is defining, for purposes of this
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subpart, the term yard access crossing in
order to further define what grade
crossings must be protected to ensure
that the ‘‘track is clear’’ (another term
defined in this section) during shoving
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and pushing movements under § 218.99.
A yard access crossing is a highway-rail
grade crossing that is located within a
yard and is either (1) open to
unrestricted public access, or (2) open to
persons other than railroad employees
going about their normal duties, e.g.,
business guests or family members. A
yard access crossing is one of the types
of crossings that must be protected. The
name is intended to describe a crossing
in a railroad yard, that is regularly used
by people who are not railroad
employees (although railroad employees
will, of course, also use these crossings).
For example, one or more crossings in
a yard may be open to anyone needing
to get to a yard office or building.
Family members and others may need to
come drop off or pick up railroad
employees, or make other pick-ups and
deliveries; if that activity is permitted
by the railroad and a crossing in the
yard must be traversed, then the
crossing shall be considered a yard
access crossing for purposes of this rule.
If the crossing is located away from yard
buildings such that they would not need
to be traversed by non-employees, then
the crossing should not be considered a
yard access crossing. FRA does not
intend for every crossing in a yard to be
considered a yard access crossing just
because a non-employee might be
foolish enough to take an unmarked or
circuitous, unconventional route to the
yard office. Of course, FRA advises each
railroad to provide adequate signs for
visitors to its yards so that there is no
confusion about where to go—and thus
no confusion for employees regarding
which crossings are required to be
protected. Generally speaking, we
would expect that a crossing that
consists of ballast thrown down to allow
maintenance-of-way vehicles and
employees to cross a track within a yard
would not be the type of crossing a
railroad would expect the members of
the general public to cross; thus, those
ad hoc crossings would nearly always
not be considered a yard access crossing
and would not need to be protected in
accordance with the shoving and
pushing requirements in this rule.
Section 218.95 Instruction, Training,
and Examination
In paragraph (a), FRA requires that
each railroad maintain a written
program that will qualify its employees
for compliance with operating rules
implementing the requirements of this
subpart to the extent these requirements
are pertinent to the employee’s duties.
Thus, the pool of employees that would
need to be covered by the program are
those employees involved in shoving or
pushing operations, remote control
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operations, and any operation where
equipment might be left fouling a
connecting track—as well as any
employee that may be required to
operate hand-operated switches and
fixed derails. The written program may
be a stand-alone program or
consolidated with the program of
instruction required under § 217.11 of
this chapter. FRA anticipates that most
railroads would choose to consolidate
this program with the part 217
requirement. Although FRA encourages
the efficiencies consolidation is sure to
bring, FRA’s expectation is that the
consolidated written program will
sufficiently emphasize the requirements
of this subpart. Each railroad is required
to establish the program no later than
July 1, 2008, and continue to maintain
it thereafter.
Paragraphs (a)(1) and (a)(2) provide
more details regarding what should be
included in the written program.
Paragraph (a)(1) requires that the
program include instruction on
consequences of noncompliance, i.e.,
that FRA can take enforcement action
through civil penalties or
disqualification from safety sensitive
service. See 49 CFR part 209, subpart D-
Disqualification Procedures. Paragraph
(a)(2) requires that the written program
address the need to qualify employees
on all aspects of the technology the
employees will be utilizing when
complying with the operating rules
required by this subpart. For example,
employees may be expected to operate
a variety of hand-operated switches and
must be taught how to properly operate
them as well as what to do if a
malfunction or deviation is detected.
This final rule differs slightly from the
proposal. In the NPRM, FRA requested
comments regarding whether the final
rule should include any specific
reference to qualification of employees
on the territory where they will be
working. FRA explained in the proposal
that it was not immediately obvious
how this concept should be applied in
the subpart F context. During the RSAC
discussions and in comments, labor
representatives asked for a more explicit
recognition of this requirement and
suggested revising paragraph (a)(2) to
require that each worker be ‘‘qualified,’’
rather than just ‘‘trained,’’ on the items
listed in that paragraph. FRA agrees and
has changed the relevant proposed
phrasing from ‘‘shall include training’’
to ‘‘shall include qualifying the
employee.’’ Although this change does
not amount to a specific requirement
that every employee shall be territorially
qualified, it is implicit that this type of
qualification is required when necessary
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 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations
to provide the knowledge required to
comply with the subject rules.
Locomotive engineers, including those
that are remote control operators, are
already required to be territorially
qualified pursuant to part 240 of this
chapter. Furthermore, FRA hopes to
allay labor’s fears by reminding
interested parties that if territorial
qualification is a necessary component
for complying with one of the subpart
F operating rule requirements and that
qualification was not provided to an
employee, FRA is unlikely to bring an
enforcement action against the
employee because FRA would likely
have difficulty proving that the
violation was ‘‘willful.’’ See 49 CFR part
209, app. A. Finally, FRA has revised
paragraph (a)(2) by changing the word
‘‘employed’’ to ‘‘necessary’’ because, in
context, the word ‘‘employed’’ implied
‘‘used;’’ the change clarifies that an
employee cannot be deemed qualified to
accomplish the work without satisfying
the qualifications requirements in the
program that specify any instruction,
training and examination needed to
operate the technology and understand
any related procedures.
Paragraphs (a)(3) and (a)(4) address
the implementation schedule for this
subpart. Paragraph (a)(3) requires that
prior to January 1, 2009, employees
performing duties subject to these
requirements shall be qualified per the
minimum requirements in this subpart.
It is further required under paragraph
(a)(3) that employees who are hired
during the period following April 14,
2008 through January 1, 2009, would
not be provided such a grace period;
instead, is required that new hires
receive the proper qualification training
before being allowed to perform duties
subject to the requirements of this
subpart. Furthermore, under paragraph
(a)(4), after January 1, 2009, no further
grace period is provided and employees
shall receive recurrence training at least
every three years. FRA is requiring this
three year window because it is
becoming a standard industry practice
to re-qualify employees on operating
rules at least every three years and that
is a reasonable time period in which to
conduct continuing education. The
dates in paragraphs (a)(3) and (a)(4)
were extended so that they would
coincide with the calendar year, rather
than the effective date of the final rule.
Finally, pursuant to paragraph (a)(5), the
record for each employee shall
document qualification of employees
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under this subpart by including any
records of required instruction,
examination and training.
Both AAR and APTA requested that
FRA change the training schedule
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through a longer grandfather provision
than the one year proposed and extend
all the schedules for implementation so
that the required training could be
accomplished during the normal three
year cycle. The latter concern is that a
large railroad with many employees to
qualify will only need to train about a
third of its employees each year, while
FRA proposed requiring all current
employees to be trained within one year
from the date of the rule’s publication.
FRA is not adopting the suggestions
because one full year should be
sufficient time for a railroad to modify
its operating rules according to this
subpart and qualify its employees on the
small number of operating rules covered
by this subpart. Many railroads may
find little difference, if any, between the
subpart F requirements and their
existing operating rules. Experienced
employees should have little difficulty
understanding the nuances of any of the
new rules, so FRA does not envision
qualifying existing employees to be
greater than a refresher course with
limited subjects to be covered. FRA
perceives that the commenters may be
expressing a frustration that the
railroads will need to schedule this
qualification class and not be able to
logistically combine it with a regularly
scheduled operating rules training class
under § 217.11 for every one of its
employees; i.e., employees scheduled to
receive operating rules training this year
would be covered, but not those
previously scheduled for the following
two years. FRA permits railroads to
combine the training under this subpart
with the § 217.11 training, but not to
extend the deadlines for the subpart F
training. Again, AAR and APTA’s
requests are denied mainly because the
qualifications requirements under this
subpart cover a limited number of
operating rules and subject areas that
experienced employees should readily
comprehend without many questions or
concerns.
Paragraph (b) requires that
qualification records required by this
subpart be retained at a railroad’s
system headquarters and at the division
headquarters, if any, where the
employee is assigned. This will enable
FRA to quickly obtain such qualification
records upon request. FRA has not
required a retention schedule for these
records as we believe the section
mandates that at a minimum: (1)
Records must be kept for each employee
qualified and (2) when an employee is
requalified, there is no longer a need for
a railroad to retain the old record as it
has been superceded by the new one.
Paragraph (b) also includes the option to
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8469
allow a railroad to retain these records
electronically in accordance with
§§ 217.9(g) and 217.11(c) of this chapter;
this option was added to address a
comment from APTA for FRA to specify
that electronic recordkeeping would be
acceptable.
Paragraph (c) provides a mechanism
for FRA to review and disapprove of a
railroad’s written program required
under paragraph (a). It also requires
minimum procedures and structure to
the review process. The paragraph
provides that the Associate
Administrator for Safety will only
disapprove programs of instruction,
training, and examination required by
this section for cause stated. As the
disapproval decision is made for cause,
it is significant for the railroad to
understand exactly why FRA is
disapproving the program; thus,
notification of such disapproval will be
made in writing and specify the basis
for the disapproval decision. If the
Associate Administrator for Safety
disapproves the program, the railroad
has 35 days from the date of the written
notification of such disapproval to
either (1) amend its program and submit
it to the Associate Administrator for
Safety for approval, or (2) provide a
written response in support of the
program to the Associate Administrator
for Safety. If the railroad chooses the
second option to defend the allegedly
defective program, the Associate
Administrator for Safety will inform the
railroad of FRA’s final decision in
writing. Although the rule is silent
regarding whether a railroad may
request an extension, FRA intends for
the Associate Administrator for Safety,
as the agency’s decision-maker, to have
the flexibility to decide procedural
issues, such as having the ability to
grant or deny requests for extensions of
time, as the issues arise. The Associate
Administrator for Safety renders a final
decision in writing which will specify
the terms and conditions under which
the program will be considered
approved or disapproved. If the decision
denies the railroad’s request in whole or
in part, FRA intends for the railroad to
amend its program and submit it to the
Associate Administrator for Safety for
approval within 35 days of the final
decision as that is the period of time
accorded for amending programs when
a railroad chooses not to appeal the
disapproval. Again, a railroad may
request an extension of time to amend
its program and submit it to the
Associate Administrator for Safety for
approval, and FRA intends for the
Associate Administrator for Safety to
have the flexibility to decide whether to
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 8470 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations
grant or deny such procedural requests.
Although enforcement action is always
discretionary, FRA believes that
enforcement action is warranted when a
railroad fails to appropriately and
timely amend its program; for this
reason, FRA is requiring in paragraph
(c)(2) that a failure to submit the
program with the necessary revisions to
the Associate Administrator for Safety
will be considered a failure to
implement a program under this part.
The approach in paragraph (c)
recognizes that FRA will typically want
to review such written programs during
audits or investigations and that FRA
should have the authority to request
changes to the program if it does not
meet the minimum requirements of this
rule. The oversight authority vests with
the Associate Administrator for Safety.
Although FRA would have authority to
review in detail each railroad’s program,
FRA is not requiring each railroad to
submit its program for review and
explicit approval. Rather, FRA will
review the qualification programs of the
railroads over a multi-year cycle, in
connection with review of the overall
program of operating rules, to determine
if they are effective. Among the factors
that would be considered would be the
extent to which the program is founded
on appropriate task analysis, the
completeness of the curriculum, the
types of instructional methods,
appropriateness of written and other
tests, criteria for successful completion,
and—most importantly—the ability of
employees said to be qualified to apply
the rules in practical situations. The
final rule contains more details than in
the NPRM but the overall approach is
not significantly different.
Section 218.97 Good Faith Challenge
Procedures
FRA received a wide-variety of
comments pertaining to the proposed
good faith challenge procedures section.
In short, the labor organizations
generally supported the procedures and
offered small suggestions for
improvement, while the associations
representing railroad management
generally requested more significant
changes based on legal and policy
concerns. The legal concerns raised by
the comments are addressed earlier in
this rule in the preamble. See IV.
General Comments/Major Issues, Good
Faith Challenge—Legal Issues. While
most of the procedures in this paragraph
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are maintained from the proposed rule,
FRA has amended this section to allay
valid concerns raised by the comments
and to correct deficiencies in enforcing
the challenge.
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The main purpose of requiring that
each railroad establish operating rules
containing certain minimum
requirements under this subpart is to
ensure safe handling requirements of
certain operations by employees where
human factor caused accidents have
historically occurred. Codifying these
requirements will enable FRA to take
enforcement action when necessary, and
will therefore discourage
noncompliance with these important
safety rules. FRA is convinced that
human factor caused accident rates and
incidents of noncompliance would be
significantly lower if each railroad were
properly qualifying employees and
consistently enforcing its own operating
rules. FRA’s perception is that on
occasion some railroad officers are
permissive in allowing occasional
violations of operating rules in order to
achieve short-term perceived
efficiencies. For example, a railroad
officer may order an employee to shove
blind, i.e., without ensuring that the
track is clear for the movement, in an
effort to finish a job quickly and get a
train out of the yard. If the move
originated from a direct order by a
railroad official, the employee might
fear challenging the railroad official on
the order or might have complied with
so many similar orders in the past as to
not perceive the danger in occasionally
violating an operating rule. Another
example could occur when an employee
is told he or she may leave work early
as soon as a particular assignment is
complete. Rather than taking the longer
but safer route to determine that a
switch was left properly lined, the
employee assumes the switch was left
properly lined, even though some time
has passed since the employee last
observed it. This rule is intended to
check emergence of the culture that
occasionally accepts some degree of
noncompliance with a railroad’s
operating rules.
One essential aspect of changing this
undesirable culture of complacency
with some noncompliance is to
establish better lines of communication
between employees and railroad
officers. Section 218.95 requires that
railroads have a written program that
will ensure that employees are well
trained and qualified to do the work. A
qualified employee should readily
recognize when a railroad officer has
given the employee an order that does
not comply with the railroad’s own
operating rules. In order to address this
issue further, FRA is requiring good
faith challenge procedures.
The good faith challenge procedures
are about establishing dialogues
between employees and railroad
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officials. A good faith challenge is
initiated by an employee who believes
that if he or she obeys a particular order
issued by a railroad official, the
employee would violate one or more of
the operating rules required by this
subpart. At its core, the good faith
challenge and its attendant procedures
should force a railroad official to listen
to an employee’s concern regarding
such an order and to reconsider the
validity of the order. FRA has created a
mechanism for appealing the first
official’s order to a second official in the
situation where dialogue and
compromise do not resolve the
discrepancy.
FRA has added paragraph (a) so that
the regulation sets forth the
responsibility of employees to provide
consistence with other good faith
challenge regulations promulgated by
FRA. See 49 CFR 214.503(a) and
214.313. This paragraph clarifies that
whenever an employee makes a good
faith determination that the employee
has been directed to violate either FRA
regulations or a railroad’s operating
rules regarding the handling of
equipment, switches, and fixed derails,
the employee shall inform the railroad
or employer (as not all rail employees
work directly for a railroad) of the belief
that the order may be in violation. Thus,
in the interest of safety, an employee
has a duty to raise challenges to
perceived non-complying orders. With
the addition of paragraph (a), all of the
proposed paragraphs required
renumbering.
As explained in the proposed rule,
FRA refers to the challenge as the ‘‘good
faith’’ challenge because we do not
intend for employees to abuse it. We
expect bad faith challenges to never or
rarely occur and for the challenge to
provide, in part, for a dialogue between
employee and supervisor that railroads
should be permitting and encouraging
without being prompted by regulation.
That said, it is possible for bad faith
challenges to occur. For example, if
several experienced employees in a
particular yard were all to initiate
separate challenges where no real
dispute could be articulated, this
concerted effort to create a work
stoppage or slowdown would be in bad
faith. It might also be considered bad
faith, or at least cause for concern, if an
employee repeatedly made similar
challenges that were without merit; in
such an instance, the facts and
circumstances of each incident would
need evaluation as the problem could be
inadequate qualifications or
experience—not necessarily a challenge
made in bad faith. It is certainly not an
act of bad faith for an employee who
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 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations
makes a challenge to have simply
misinterpreted the operating rule or
practice, and we would have serious
concerns with a railroad that sought to
punish an employee merely for asserting
the challenge and being wrong. Again,
we emphasize that we do not anticipate
abuse of the challenge as FRA has not
heard any anecdotal discussions of
abuse with the already existing good
faith challenges. Furthermore, if the
good faith challenge is found to be
regularly abused, FRA would consider
amending the challenge to reduce the
likelihood of abuse or abolishing the
challenge during a future rulemaking.
FRA is promulgating good faith
challenge procedures that are more
detailed than those established for
roadway workers because the officer/
employee relationship dynamic is
different for roadway work versus
operations work. That is, the strict chain
of command is more prevalent in
operations than roadway work. Thus, a
supervisor of roadway work may be
more accepting of a challenge than an
operations supervisor, e.g., a
yardmaster.
The concept of a good faith challenge
applied to operations is not wholly
unknown in the railroad industry. For
example, we applaud the efforts of
Metro-North Railroad, which has
instituted a good faith challenge that is
much broader than what FRA is
requiring through this rule. Metro-North
allows good faith challenges to any
directive that would violate an
operating rule or instruction in the
following areas: operating rules,
timetable, equipment operating
instructions, electrical instructions,
hazardous material instructions, safety
instructions, and bulletin orders and
general notices. Metro-North provides
its employees the right to have a second
supervisor review the challenge and
lists the titles of the supervisors who are
able to perform a second review:
Operations Managers, District
Superintendents, Line Superintendents,
General and System Road Foremen,
Chief Rail Traffic Controllers, and
Operating Rules Department
Supervisors. Metro-North also pledges
that it will not subject an employee to
discipline for a violation of a rule or
instruction when being ordered to
comply by a second supervisor,
provides for the right to document the
challenge prior to the completion of the
tour of duty, and the right to a written
decision if requested promptly. Metro-
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North has also instituted its own form
for tracking each challenge. Of course,
FRA is prescribing minimum good faith
challenge requirements only and each
railroad may prescribe additional or
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more stringent requirements. See 49
CFR 218.1.
Proposed paragraph (a) is
redesignated as paragraph (b). Paragraph
(b) provides the general procedures for
implementing a good faith challenge
specific to the requirements of this
subpart; railroads or employers of
railroad employees subject to this
subpart, of course, are free to implement
a good faith challenge in areas not
subject to this subpart as Metro-North
has done. Paragraph (b) requires that
each employer be responsible for the
training and compliance by its
employees with the requirements of this
subpart. Obviously, railroads will have
to instruct employees on all aspects of
the good faith challenge or it will have
no effect. The good faith challenge
procedures must be made available to
roadway workers as the definition of
‘‘employee’’ includes ‘‘an individual
who is engaged or compensated by a
railroad or by a contractor to a railroad
to perform any of the duties defined in
this subpart. Although FRA does not
anticipate that roadway workers would
be involved in many, if any, shoving or
pushing movements, the regulations
pertaining to switches, fixed derails and
leaving equipment in the clear would
likely be applicable. FRA intends to take
enforcement action where a railroad
fails to properly instruct employees or a
railroad’s officers fail to comply with
implementation of the good faith
challenge procedures.
Paragraph (b)(1) requires that each
employer adopt and implement written
procedures which guarantee each
employee the right to challenge in good
faith whether the procedures that will
be used to accomplish a specific task
comply with the requirements of this
subpart or any operating rule relied
upon to fulfill the requirements of this
subpart. Therefore, it is not enough for
an employer to maintain such a
guarantee in its written procedures as
the employer has a duty to implement
this guarantee. If an employee is denied
the right to make a challenge, or is
denied any aspect of the required
procedures, FRA may seek enforcement
action against the employer or
individual responsible for denying the
employee’s right. Of course, the
requirement’s applicability would only
be for a challenge to any order that
violates a requirement in subpart F.
Paragraph (b)(1) of the rule also
requires a railroad to adopt and
implement written procedures as the
mechanism for instituting the good faith
challenge. Such written procedures
should not lead to protracted arguments
that are unusually disruptive to
operations as FRA is requiring that each
PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
8471
railroad’s procedures provide for
‘‘prompt’’ challenges. FRA’s
expectations are that such challenges
should be resolved in a matter of
minutes, certainly not an hour or more.
It is within this context that FRA also
specified the concept that a railroad’s
written procedures provide for
‘‘equitable resolution of challenges;’’ by
this requirement, FRA meant for a
railroad officer to give deference to an
employee’s challenge if the employee
has suggested a safe way to do the work
that is in compliance with the relevant
operating rules. Follow-up to clarify the
correct application of the rule leading to
the challenge can be done at a later time
or date so that a definitive answer may
be provided by the railroad to the
railroad officer and employee involved;
e.g., a railroad’s manager of operating
rules may want to issue a bulletin
generically outlining the challenge and
the proper application of the rule. As a
good practice, a railroad should take
this extra step to clarify a definitive
answer even if the employee does not
request such a review, as provided for
in paragraph (d)(4), as it may be used as
a learning experience for other
employees and supervisors.
FRA is revising proposed paragraph
(a)(2), which has been redesignated as
paragraph (b)(2). The proposed
paragraph would have required that a
railroad’s good faith procedures indicate
that the challenge is not intended to
supplant any rights or remedies
available to the employee under a
collective bargaining agreement or
under the statute providing for
employee protections found at 49 U.S.C.
20109. As discussed earlier, the
employee protections of this statute
have been expanded and the authority
to investigate whistleblower complaints
has been transferred to DOL. The
paragraph’s revisions require that the
written procedures required by this
section shall indicate that the good faith
challenge described in paragraph (b)(1)
is not intended to abridge any rights or
remedies available to the employee
under a collective bargaining agreement,
or any Federal law including, but not
limited to, 29 U.S.C. 651 et seq., 6
U.S.C. 1142, or 49 U.S.C. 20109. The
citation to 29 U.S.C. 651 et seq. is a
reference to the Occupational Safety and
Health Act of 1970 (OSH Act of 1970)
that is implemented by DOL’s
Occupational Safety and Health
Administration (OSHA) and is designed
to regulate employment conditions
relating to occupational safety and
health and to achieve safer and more
healthful workplaces. Section 11(c) of
the OSH Act of 1970, found at 29 U.S.C.
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 8472 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations
660(c), generally protects employees
from retaliation for raising concerns or
filing complaints alleging workplace
safety or health violations under the
Act. The citations to 6 U.S.C. 1142 and
49 U.S.C. 20109 are references to
protections afforded to public
transportation employees and
employees of a railroad carrier engaged
in interstate or foreign commerce
respectively, including employees of
contractors and subcontractors. Both of
these provisions are implemented by
DOL. Although FRA views these
statutory provisions as wholly separate
from the regulation we are promulgating
and FRA’s enforcement authority, the
statutory provisions provide employees
with rights and remedies in cases of
retaliation for refusing to violate or
assist in the violation of any Federal
law, rule, or regulation related to
railroad safety as well as taking other
enumerated actions. The citation to
these laws in the written procedures is
a reminder to employees of their rights
and remedies which provide an
opportunity to pursue an assortment of
relief, including punitive damages,
against an employer for an improper
action.
FRA’s decision to expand paragraph
(b)(2) is being made in conjunction with
the deletion of proposed (b)(2).
Proposed paragraph (b)(2) would have
required that each railroad’s good faith
written procedures contain a
requirement that would provide that an
employee making a good faith challenge
shall not be discharged or in any way
discriminated against for making the
challenge. FRA viewed the proposal as
an essential aspect of the good faith
challenge procedures as employees
would certainly be discouraged from
raising a challenge if the employer is not
prohibited from retaliating against an
employee for making a challenge.
However, as explained in the preamble,
the recently amended statutory
employee protection provisions changed
the landscape of whistleblower
protection for railroad employees such
that FRA no longer perceives a need for
a separate regulatory requirement
against retaliatory conduct. See B. Good
Faith Challenge—Legal Issues, 4. Anti-
Retaliation Provision.
Proposed paragraph (a)(3) is
redesignated as paragraph (b)(3). This
paragraph requires that a railroad
instruct affected employees on the good
faith challenge procedures
contemporaneously with the training
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railroads are required to provide under
49 CFR 217.11. The idea is that an
employee’s chance of understanding the
proper application of the good faith
challenge should be greatest at the time
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the employee is receiving instruction on
the relevant operating rules. Of course,
FRA does not expect a railroad to
instruct an employee whose duties do
not involve handling equipment,
switches and derails. If an employee’s
duties change to include these activities,
the railroad will have to provide the
instruction prior to assigning the new
duties.
The good faith challenge procedures
are a critical component of this final
rule, which is narrowly tailored with
the intention to drive down the number
of accidents caused by human factors.
Employees learn in the classroom but
there are often so many topics covered
in an operating rules class that it could
be difficult for an employee to retain
everything taught. To compensate,
railroads traditionally provide operating
rule books not only to put employees on
notice that compliance with these rules
is expected, but also, as a reference so
that each employee can check the rules
and be reminded of their requirements.
In similar fashion, FRA is requiring in
paragraph (b)(4), previously proposed
paragraph (a)(4), that each railroad
provide a current copy of its written
good faith procedures to each affected
employee. By requiring a current copy,
FRA has incorporated the idea in the
proposed rule that each railroad provide
each affected employee with any
amendments to its written procedures
prior to the effective date of the
amendments. Also, like any other record
FRA requires, a railroad would need to
make the written procedures available
for inspection by FRA during normal
business hours.
Proposed paragraph (b) has been
redesignated as paragraph (c). Paragraph
(c) requires additional procedures for
each railroad to include in its written
good faith procedures. Each of these
more specific requirements lays the
framework for what FRA envisions as a
respectful dialogue between two
individuals with differences of opinion
on an operations issue with a safety
component; the two individuals are, of
course, an employee and an officer of
the railroad or employer.
Paragraph (c)(1) requires written
procedures granting each employee the
right to challenge any directive which,
based on the employee’s good faith
determination, would cause the
employee to violate any requirement of
this subpart or any operating rule relied
upon to fulfill the requirements of this
subpart. The good faith challenge
procedures should eliminate any stigma
employees have regarding challenging
railroad officers on safety issues
pertaining to handling equipment,
switches and derails. Likewise,
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standardization of the challenge should
cause railroad officers to truly reflect on
the orders issued and whether any
aspect of an order would result in
noncompliance with the relevant
railroad operating rules.
Proposed paragraph (b)(3) contained
two components, one of which has been
redesignated as paragraph (c)(2).
Paragraph (c)(2) contains a similar
requirement to the first component of
proposed (b)(2), but with some
important differences. Several railroads,
and the associations that represent
them, objected to the proposed
paragraph in that it stated that the good
faith written procedures include a
provision ‘‘that no work is to be
performed with respect to the
challenged task until the challenge is
resolved.’’ The proposal was intended to
duplicate a similar provision found in
the roadway worker rule that required
allowing the challenging employee ‘‘to
remain clear of the track until the
challenge is resolved.’’ 49 CFR
214.311(b). And while this requirement
has not posed any problems for
employers of roadway workers, many
railroads expressed dismay at this
provision and sought additional
amendment or deletion of this
paragraph.
The amendments to paragraph (c)(2)
are intended to protect the employee
who made the challenge from being
required to comply with the challenged
directive while the challenge is
unresolved. The first part of the
paragraph requires that the written
program ‘‘provide that the railroad or
employer shall not require the
challenging employee to comply with
the directive until the challenge
resulting from the good faith
determination is resolved.’’ This
language more closely conforms to
FRA’s other good faith challenge
regulations than the NPRM.
In RSAC Working Group meetings,
FRA heard two related complaints from
railroads regarding proposed paragraph
(b)(3). One, several railroads commented
that the proposed regulatory text did not
address whether the challenging
employee could be ordered to do other
work while the challenge is unresolved.
As it was FRA’s intent to allow for this
type of work, we have added paragraph
(c)(3) to address this issue. Paragraph
(c)(3) requires that the written
procedures shall provide that the
railroad or employer may require the
challenging employee to perform tasks
unrelated to the challenge until the
challenge is resolved. Of course,
whether or not a railroad or employer
chooses to exercise the option of
switching an employee’s duties while
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the challenge is being resolved is a
decision for the railroad or employer.
The second of the two complaints
from railroads regarding proposed
paragraph (b)(3) involved a concern that
the NPRM indicated that nobody could
do the work with respect to the
challenged task until the challenge was
resolved. FRA did not agree that the
NPRM prohibited another employee
from doing the challenged task prior to
resolving the challenge. Meanwhile, we
had, and still have, reservations about
providing a railroad or employer with a
clear path to order some other employee
to do work that another employee is
challenging as non-complying—and
thus unsafe. In response to the requests
for clarification, paragraph (c)(4) has
been added. This paragraph requires the
written procedures to provide that the
employer may direct an employee, other
than the challenging employee, to
perform the challenged task prior to the
challenge being resolved as long as this
other employee is informed of the
challenge and does not also make a good
faith determination that the challenged
task would violate FRA regulations
regarding the handling of equipment,
switches, and fixed derails as required
in this subpart, or a railroad’s operating
rules implementing the requirements of
this subpart. Thus, paragraph (c)(4)
prohibits an employer from ordering a
second employee to do the work
without verbally notifying this second
employee that another employee has
asserted a good faith challenge. At a
minimum, for purposes of this
paragraph being ‘‘informed of the
challenge’’ means that the person giving
the directive shall explain that another
employee has made a good faith
determination that the task does not
comply with an operating rule or FRA
regulation, as well as provide a synopsis
of the specifics of the challenge. This
option permits an employer, who is
certain that the challenging employee is
wrong, an opportunity to get the work
done by another qualified person. Of
course, any employee asked to perform
a task that does not comply with this
subpart has the same right to challenge
the task, regardless of whether any other
employee has also challenged that task.
Also, all employees have the same
responsibility under paragraph (a) to
inform the employer of directives that
violate this subpart or any operating
rules implementing this subpart.
The second part of proposed
paragraph (b)(3), which has been
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redesignated as (c)(5), identifies the
ways that a challenge may be
‘‘resolved.’’ Each of the ways that a
challenge may be resolved has been
designated in its own paragraph
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numbered (i) through (iv). One, we
expect that some railroad officers when
challenged will realize that the
employee’s suggested alternative
method of operation is an acceptable
option that is in compliance with this
subpart and the carrier’s operating rules
implementing this subpart. The officer
may or may not agree that the original
directive was non-complying but the
challenge in this case can be resolved
amicably. Two, after making a challenge
and receiving an explanation or
recitation of the rule from the officer, an
employee may likewise realize that the
officer’s directive was in compliance
and decide to comply with the directive.
Three, in some situations, the challenge
may lead to a discussion of options on
how the task can be performed in
compliance with the operating rules.
That discussion may lead to a
realization either that both persons were
only partially correct or there is another
option not previously asserted. Under
those circumstances, an amicable
resolution would be the advancement of
a third option that was reached through
communication and compromise, and is
therefore satisfactory to both parties.
Four, there may be instances when an
officer believes the directive is
permitted by the operating rules, and
that either the employee’s challenge is
being made in bad faith or there is no
reasonable alternative to the direct
order; in those situations, the written
procedures will provide for review as
further determined under paragraph (d)
of this section.
Proposed paragraph (c), which was
redesignated as paragraph (d), requires
each railroad to provide additional
written procedures in the event that a
challenge cannot be resolved amicably.
Thus, the additional procedures in this
paragraph are required to be complied
with when the person issuing the
directive determines that the employee’s
challenge has not been made in good
faith or there is no reasonable
alternative to the direct order. As it is
often difficult to determine that a person
is acting in bad faith, the person issuing
the directive should typically give the
challenging employee the benefit of the
doubt that the challenge is being made
in good faith and attempt to resolve the
challenge without the need for further
review.
In the event of a stalemate, where the
challenging employee and the person
issuing the directive cannot agree to
resolve the challenge, paragraph (d)
requires that the written procedures
provide that four additional
requirements be met. Paragraph (d)(1)
carries over from the NPRM the
requirement that an immediate review
PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
8473
by another railroad or employer officer
be provided. The immediate review
must be held by another officer who
cannot be unduly influenced by the
officer who issued the challenged
directive or the review will not have the
appearance of fairness. FRA expects that
fair review will be accomplished if the
reviewing officer is a different officer
who is not a subordinate of the officer
who issued the challenged directive.
FRA envisions this immediate review as
a quick check with another officer that
should not be unduly burdensome.
In the NPRM, FRA requested
comments regarding whether some
smaller railroads might have difficulty
complying with an immediate review
requirement. FRA did receive
comments, mostly oral during the RSAC
Railroad Operating Rules Working
Group meetings, explaining that the
smallest railroads would likely
encounter problems providing an
immediate review when so few officers
would be available to conduct them.
Consequently, FRA has decided to
revise the requirement in paragraph
(d)(1) so that the immediate review will
not be mandatory for each railroad with
less than 400,000 total employee work
hours annually.
In paragraph (d)(1)(i), FRA retains
from the NPRM the requirement that the
immediate review not be conducted by
the person issuing the challenged
directive, or that person’s subordinate.
APTA commented that it is not always
clear what other officers are in another’s
chain of command, and whether one
officer is subordinate to another.
Although not directly addressed in the
rule, the rule’s silence on this issue is
intended to provide each railroad with
the flexibility to describe its approach in
its procedures and how the intent of the
rule will be followed. Similarly, during
the RSAC Railroad Operating Rules
Working Group meetings, AAR and
APTA voiced opposition to the idea of
the promulgation of a good faith
challenge. Both associations were
concerned that implementation of such
a challenge would pose numerous
logistical difficulties as well as a
perceived high potential for abuse by
employees. One concern raised was that
on-time performance could easily be
compromised if an employee raised a
challenge and a quick compromise
solution could not be reached. The rule
does not need to address this issue as
each railroad or employer needs to
address it by setting up effective
protocols for supervisors to follow when
issuing direct orders to proceed; i.e.,
each yardmaster or other supervisor
should know who to contact in the
event that an immediate review is
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needed. A railroad may wish to provide
contact lists to each supervisor of other
supervisors so that each supervisor has
multiple people to contact in the event
a challenge needs immediate review.
Again, the intent of the rule is to
provide for an immediate review by a
railroad officer who cannot be unduly
influenced by the officer who issued the
initial order so that a fair review may be
perceived. As explained previously in
this analysis, Metro-North has
addressed this issue in its good faith
challenge program and has thus
provided an example of how to address
this issue.
The requirement in paragraph
(d)(1)(ii) is based on a requirement in
proposed paragraph (c)(1). During an
immediate review, the reviewing officer
has the same options to resolve the
challenge as the person who issued the
challenged directive, however, the
officer making the immediate review
shall also have the option described in
paragraph (d)(2). FRA believes that there
has to be some finality to the immediate
review process and that one review is
enough. Of course, paragraph (d)(1)
provides the minimum immediate
review requirements and a railroad is
not prohibited from providing a second
immediate review or other additional
requirements.
Paragraph (d)(2) provides that if the
officer making the railroad’s or
employer’s final decision concludes that
the challenged directive would not
cause the employee to violate any
requirement of this subpart or the
railroad’s or employer’s operating rule
relied upon to fulfill the requirements of
this subpart and directs the employee to
perform the challenged directive, the
officer shall further explain to the
employee that Federal law may protect
the employee from retaliation if the
employee refuses to do the work and if
the employee’s refusal is a lawful, good
faith act. This paragraph is based on the
option in proposed paragraph (b)(3) that
suggested permitting an officer to
resolve a challenge by issuing a direct
order to proceed with the work as
initially ordered. There may be
situations where the officer making the
final decision concludes that the direct
order would not violate this subpart, or
any operating rule relied upon to fulfill
the requirements of this subpart; in that
situation, the officer may direct the
employee to perform the challenged
directive after explaining to the
employee that Federal law may protect
pwalker on PROD1PC71 with RULES3
the employee from retaliation if the
employee refuses to do the work and if
the employee’s refusal is a lawful, good
faith act. This notification requirement
serves several purposes. One, it reminds
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the employee of the statutory anti-
retaliation protection prior to the
employee choosing between doing or
refusing to do the work. Two, it reminds
the employee that if he or she refuses to
do the work, the statutory protections
will not protect him or her from
retaliation if the employee is acting
unlawfully or in bad faith. Three, the
officer’s act of providing this
notification to the employee also
provides a reminder to the officer that
the employee is likely protected from
retaliation for refusing to do the work
except where there is evidence proving
that the employee’s refusal is unlawful
or made in bad faith. An officer ordering
an employee to do such work would be
expected to have a high degree of
confidence in issuing such an order, and
we would expect railroads and
employers to carefully instruct officers
on these procedures, as a challenging
employee might file a complaint or
lawsuit based on the failure to follow
proper good faith challenge procedures
or for later retaliation based on a refusal
to do the work.
Paragraph (d)(3) maintains a similar
requirement from proposed paragraph
(c)(2) that the written procedures
provide the employee with an
opportunity to document electronically
or in writing any protest to the railroad
or employer’s final decision before the
tour of duty is complete. The employee
shall also be afforded the opportunity to
retain a copy of the protest. Examples of
electronic records may include, but are
not limited to, recorded radio
communications, electronic mail (i.e.,
e-mail), or filling out a computer form
or database. If electronic recording is
permitted by the railroad’s program,
railroads will need to maintain methods
for providing the employee with a copy
of that record. Maintaining such a
record facilitates the employee’s ability
to follow-up on any further review
requested under paragraph (d)(3). FRA
considered whether to require that the
employee be provided with the
opportunity to create this record
immediately following the direct order
to proceed with the task, however, FRA
has accepted several railroads’
arguments that this could prove too
disruptive to operations, especially
passenger and commuter operations
where on-time performance is critical.
Additional time delays would result if
an employee had the right to
immediately document the challenge
before returning to work. FRA has
addressed this issue by requiring in
paragraph (d)(3) that the employee be
afforded an opportunity to document
the protest electronically (e.g., by radio
PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
transmission to be recorded) or in
writing any time ‘‘before the tour of
duty is complete.’’ This additional
requirement also reflects an existing
statutory requirement that entitles an
individual to document a protest of a
direct order of a railroad carrier official
or supervisor under protest
communicated to the official or
supervisor. 49 U.S.C. 21304. Of course,
‘‘the absence of such a protest will not
be viewed as warranting a presumption
of willfulness on the part of the
employee who might have
communicated it.’’ 49 CFR part 209,
app. A, ‘‘Civil Penalties Against
Individuals.’’ Paragraph (d)(3) does not
supercede the statutory requirement nor
does it exceed it. Given the existing
statutory requirement, the time needed
to document a protest should not pose
a new burden on railroads.
FRA has deleted proposed paragraph
(c)(3) which stated that the written
program ‘‘provide that the employee be
orally advised that completing the work
as ordered will not subject the employee
to penalties or consequences for
noncompliance with this subpart.’’
When FRA published the NPRM, this
paragraph was intended to further
clarify existing statutory rights under 49
U.S.C. 21304. Upon further reflection,
FRA found the proposed paragraph
could be confusing in that it might
suggest that a railroad officer or
supervisor could bind the FRA in the
use of the agency’s enforcement
discretion. This might be true even
where the railroad official misapplied
the law, or the individual was not
entitled to the right. APTA also raised
a valid concern that the proposed
paragraph could easily be
misinterpreted in another way; e.g., an
employee who invokes a good faith
challenge on a shoving move may
believe that he can’t be disciplined, or
have certification revoked if the
employee is a locomotive engineer, for
passing a stop signal related to that
same movement even though the officer
did not give the crew authority or
permission to pass the signal. Despite
the fact that this paragraph was deleted
and that employees are not required to
be orally advised that completing the
work as ordered will be a defense to
penalties or consequences of
noncompliance under this subpart,
section 21304 is still applicable. Thus,
‘‘[a]n individual is deemed not to have
committed a willful violation if the
individual was following the direct
order of a railroad carrier official or
supervisor under protest communicated
to the official or supervisor.’’ 49 U.S.C.
21304.
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Proposed paragraph (c)(4),
redesignated as paragraph (d)(4),
requires that the direct order procedures
shall also provide the employee with
the right to one more review by a
railroad officer designated by name or
title in the written procedures who will
make the final interpretation of the
applicable operating rule. The railroad
is not prohibited from designating more
than one individual by name or title,
although it would likely be useful to
have one person or office overseeing
these interpretations. In the proposed
rule, FRA did not specify a deadline for
issuing the verification decision; after
further consideration, FRA has decided
that some reasonable time limit should
be imposed to prevent a railroad from
taking an inordinate amount of time to
respond to an employee’s request. FRA
has decided to require that a railroad
issuing a verification decision must do
so within 30 days after the expiration of
the month during which the challenge
occurred. Thus, regardless of whether
the challenge occurred on November 1st
or 30th, the verification decision must
be provided to the employee no later
than December 30. FRA considered
imposing a strict 30-day deadline, but
decided that this type of deadline,
patterned after the one found in 49 CFR
225.11, for reporting of accidents/
incidents, provides greater flexibility
without unduly delaying the
verification decision. This paragraph
was also changed to require that the
employee make the request for further
review in writing; the proposed
paragraph left open the possibility of a
verbal request which, if left
unanswered, could potentially lead to
arguments over whether the request was
actually made. FRA is not requiring that
the written request be on a form, but a
railroad may choose to create one.
However, rather than permit the
employee to decide whether or not the
railroad should provide the employee
with a written decision as in the NPRM,
the railroad is required to provide the
employee with a written decision so
that there is no dispute regarding
whether the railroad fulfilled this
obligation. A final written decision will
also permit FRA with the opportunity to
more easily investigate claims that the
challenge had merit or the railroad is
not properly applying the Federal
regulations.
FRA did not propose, but has added,
paragraph (e) to address recordkeeping
pwalker on PROD1PC71 with RULES3
and record retention issues pertaining to
the good faith challenge procedures. For
example, in the NPRM, FRA required
each railroad to maintain written
procedures, but did not specify where
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the procedures needed to be kept so
FRA could inspect or copy them.
Paragraph (e)(1) addresses this issue by
requiring a copy of the procedures to be
retained at both the railroad’s system
headquarters and at each division
headquarters. This paragraph also
explains that the procedures shall be
made available to representatives of the
FRA for inspection and copying during
normal business hours.
In paragraph (e)(2), FRA has added a
new record retention requirement for
any written good faith challenge
verification decision made in
accordance with paragraph (d)(4). The
good faith challenge procedures are
designed so that most challenges will be
resolved on the spot through employee/
officer discussions that will not produce
a written decision. When the conflict
between the parties cannot be resolved
on the spot, a written decision is
required. FRA needs to be able to review
those written verification decisions to
analyze what types of conflicts did not
get resolved amicably. Those types of
challenges may have some merit and
result in further FRA involvement to
resolve underlying safety issues. The
written decision should provide enough
background to understand the challenge
by citing the applicable rules and
procedures, and providing an in-depth
explanation of any interpretations
necessary to analyze the factual
circumstance. FRA is also requiring that
those decisions be retained for at least
one calendar year after expiration of the
year during which the decision was
issued. The requirement for record
retention, while not proposed, follows
as a logical requirement from proposed
paragraph (c)(4) permitting the
employee to request that the railroad
provide a written decision. We cannot
fathom that a railroad would produce
such a written decision and not retain
it for some reasonable period thereafter
in order to retain an unaltered original
and possibly to use as a reference to
help address future, similar challenges.
Paragraph (e)(3) was added to clarify
that each railroad is authorized to retain
any records required by this section in
an electronic format so long as the
electronic records are kept in
accordance with the standards set forth
in § 217.9(g)(1) through (5) of this
chapter. Of course, any records required
by this section may be maintained in
either written or electronic form at the
option of the railroad.
Section 218.99 Shoving or Pushing
Movements
Although the majority of this section
remains the same as the proposed rule,
a number of changes have been made in
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8475
consideration of the comments received.
Four commenters raised specific issues
in written comments: BMWED, AAR,
UTU, and BLET. The discussions of
these comments are integrated into the
paragraphs under which they apply.
Generally, in conventional operations,
shoving or pushing movements occur
when the controlling locomotive is not
leading the movement because the
locomotive engineer is not in a position
to have an unobstructed view of the
track in the direction of the shoving
movement. However, in remote control
operations, there may be an issue with
respect to point protection in either
direction of movement. The terms
‘‘shoving’’ and ‘‘pushing’’ have the same
meaning but FRA uses both terms
because our nation’s railroads have split
in the usage of each term.
The requirement proposed in
paragraph (a) has been redesignated as
paragraph (a)(1) and revised, but the
reasons behind the requirement remains
the same. The reasons behind this
paragraph are to ensure that (1) each
railroad adopt and comply with an
operating rule which complies with the
requirements of this section; and (2)
when any person including, but not
limited to, each railroad, railroad
officer, supervisor, and employee
violates any requirement of an operating
rule which complies with the
requirements of this section, that person
be considered to have violated the
requirements of this section. The NPRM
was not intended to mean, but could
possibly have read, that each person
was only to uphold and comply with
the railroad’s operating rule and not the
regulation itself. The revisions to this
paragraph are intended to clarify FRA’s
intent.
Paragraph (a)(2) adds a new
requirement that the shoving or pushing
movement requirements of this section
do not apply to free rolling equipment—
a clarification that was not in the
proposed rule. FRA added this
clarification regarding free rolling
equipment because several participants
at the RSAC working group meetings
were unclear regarding whether FRA
intended the rule to apply to switching
activities that result in free rolling
equipment, in which a shoving or
pushing movement is the initial
movement that allows equipment to roll
free without power attached. The
addition of paragraph (a)(2) is intended
to clarify that this section does not
apply to the rolling equipment once it
is free rolling. It would be impossible to
engage in this type of acceptable
switching activity if a determination
would need to be made that the ‘‘track
is clear’’ prior to each release of a free
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 8476 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations
rolling car. Therefore, the rule does not
apply to kicking, humping, or dropping
cars as FRA does not consider those
activities to be controlled shoving or
pushing movements. Furthermore,
FRA’s experience is that each railroad
that permits these activities maintains
operating rules that require employees
to protect free rolling equipment from
traveling over highway-rail grade
crossings, pedestrian crossings, and
yard access crossings. FRA is rejecting
the idea of regulating the movement of
free rolling equipment initiated by a
shoving or pushing movement because
we have not seen an increase in the
number of accidents/incidents in this
area attributed to human factor causes;
of course, if we document an increasing
trend of such accidents/incidents, FRA
will consider whether to initiate a
rulemaking.
As specified in paragraphs (b) through
(d), shoving or pushing movements can
be made safely if precautions are taken.
This section states those minimum
precautions and requires that each
railroad have in effect specific operating
rules incorporating the precautions. The
precautions take direct aim at those
human factor causes that have been
identified as causing the increasing
trend of noncompliance and accidents.
As specified in paragraph (e), there are
other movements that could be
considered shoving or pushing
movements but FRA believes these
other movements can be treated
differently as they are safe if certain
operating conditions are met.
Paragraph (b)(1) requires that prior to
rolling equipment being shoved or
pushed, the locomotive engineer and
the employee directing the move shall
be required to participate in a job
briefing which will cover the means of
communication to be used and how
protection will be provided. The job
briefing requirement in this paragraph,
which remains the same as the proposed
paragraph, requires that the locomotive
engineer (conventional or remote
control operator) shall have a job
briefing detailing the method of
communication used to relay
information, e.g., radio, hand signals, or
pitch and catch. If the employee
providing protection is not part of the
crew, the job briefing shall include how
that qualified employee will provide
that protection; for example, if a
yardmaster is the qualified employee,
the conductor directing the move would
explain in the briefing that the
pwalker on PROD1PC71 with RULES3
yardmaster intends to provide point
protection by viewing a monitor that
provides a real-time image of the track
from a camera set up in the yard. Under
this scenario, the yardmaster would be
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performing covered service under the
hours of service laws.
Paragraph (b)(2) of the final rule
contains the requirement that during the
shoving or pushing movement, the
employee controlling the movement
shall not engage in any task unrelated to
the oversight of the shoving or pushing
movement. This requirement, which
was not in the proposed rule, was added
to address a concern brought to FRA’s
attention following the fatal accident
involving a remotely controlled
movement that led to FRA’s issuance of
Safety Advisory 2007–01. 72 FR 2333. It
was also a position raised by BMWED,
UTU and BLET in their comments. In
both the NPRM and this final rule, the
preamble addresses the problem that
remote control operators may not
always have complete situational
awareness of the movement even if the
operator is observing the movement.
Obviously, if a remote control operator
or other employee controlling the
shoving or pushing movement is
distracted by engaging in an unrelated
task, that person’s disengagement with
the movement, even briefly, may
increase the probability or severity of an
accident/incident. For example, in the
accident in Manlius, New York that was
the subject of Safety Advisory 2007–01,
FRA raised the issues of ‘‘multi-tasking’’
and trying to accomplish other tasks
that cause the person to divert attention
from providing point protection. These
are two separate issues. The issue of
‘‘multi-tasking’’ as raised in the notice
involved a remote control operator who
allegedly operated from the passenger
seat of a moving motor vehicle; such
moves are inherently fraught with
hazards, although this was not the cause
of this accident/incident. The issue of
diverted attention occurred after the
operator determined that the track was
clear for the entire length of the
movement; instead of looking down the
track waiting for his train to come into
view, FRA’s investigation suggested that
the remote control operator (RCO) may
have been attending to duties unrelated
to the movement as the RCO did not
observe the collision and initiated a
brake application only after hearing a
radio transmission from the yardmaster.
By requiring that the employee
directing the movement not engage in
any task unrelated to the oversight of
the movement, the regulation increases
the probability that the controlling
employee will be in a position to reduce
the severity of any accident that might
occur. FRA considers a ‘‘task unrelated
to the oversight of the movement’’ to be
any activity that carries significant
potential to distract the person directing
the movement from adequately
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overseeing the movement. The
unrelated task would most likely be a
work related activity, but certainly tasks
of a personal nature could be considered
significantly distracting. Any unrelated
task that would remove the person from
a location where oversight could be
effectively performed is strictly
prohibited. The following are not
significantly distracting activities and
are arguably not even ‘‘tasks:’’
momentary glances away from the
direction of movement; acknowledging
another person’s presence; and
sneezing. In contrast, the filling out of
any form, e.g., a switch list, would be
a distracting, unrelated task that can not
be safely accomplished while the
movement is occurring.
FRA acknowledges that its adoption
of the requirement in paragraph (b)(2)
will not prevent all accidents. A rule
that requires a controlling employee to
continuously observe the leading end of
the movement might be more effective
in preventing accidents; however, as
FRA stated earlier, a ‘‘continuous
observation’’ requirement would force
more employees to either walk or ride
the point—creating an even greater
vulnerability that someone could get
hurt. An employee walking the point
could slip, trip, or fall, and an employee
riding the point could be injured or
killed in any collision with another
piece of rolling equipment. In addition,
this final rule’s required determination
that the track is clear prior to initiating
the shoving or pushing movement
should substantially reduce the
likelihood of any collisions. That is, a
determination that the track is clear
includes the determination that ‘‘the
portion of the track to be used is
unoccupied by rolling equipment, on-
track maintenance-of-way equipment,
and conflicting on-track movements.’’
The application of FRA’s final rule
reduces the likelihood of an accident
between a carman operating a pickup
truck across a yard crossing if the
pickup truck is crossing the track at a
type of yard crossing to be protected
(i.e., a ‘highway-rail grade crossing’ or
‘‘yard access crossing’’ as those terms
are defined under § 218.93). In addition,
the severity of a collision between a
shoving or pushing movement and off-
track maintenance-of-way equipment
may be reduced by an alert employee
protecting the point who responds
quickly to stop the movement.
Meanwhile, railroad employees
operating off-track machinery will need
to continue to be careful to follow
railroad operating rules that require
them to protect themselves when
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crossing tracks at unprotected yard
crossings.
Former paragraph (b)(2), which has
been redesignated as paragraph (b)(3)
states the requirements for establishing
point protection during shoving or
pushing movements. The rule requires
that only a crewmember or other
qualified employee shall provide point
protection. In this context,
crewmembers or qualified employees
include remote control operators
working together, members of other
train crews, and other employees,
regardless of job title, who are qualified
to perform the job (see definitions of
‘‘employee’’ and ‘‘qualified’’ in this
subpart). The requirements of this
section address work that is ‘‘covered
service’’ under the hours of service
laws. 49 U.S.C. 21101, et seq. Thus, to
be a qualified employee, the employee
will need to receive instruction and
testing, be subject to Federal regulations
controlling alcohol and drug use and
hours of service recordkeeping provided
for, respectively, in parts 217, 219 and
228 of this chapter. The purpose of
requiring a qualified employee, as
opposed to any employee, is to prevent
persons that may not be qualified (e.g.,
taxi drivers, crane operators, or clerks)
from making safety sensitive operating
decisions without the proper instruction
and safeguards in place. Incidently, if an
unqualified person were to perform this
work in violation of the rule, the person
would still have to be accounted for
under the hours of service laws or the
railroad would incur additional
liability.
FRA has decided that some of the
proposed requirements in paragraph
(b)(2)(i) needed alteration based on
comments received and the
consideration of the facts surrounding
the accident that led to the issuance of
Safety Advisory 2007–01. The purpose
of this paragraph remains the same,
although the final rule’s requirements
are altered from that originally
proposed. Shoving accidents often occur
because a train crew makes a shoving
movement without determining that the
track is clear in the direction of
movement. The proposed rule suggested
a requirement that the employee
providing point protection visually
determine, for the duration of the
shoving or pushing movement, that the
track is clear within the range of vision
or for the complete distance to be
shoved or pushed. AAR commented that
the phrase ‘‘the duration of the shoving
pwalker on PROD1PC71 with RULES3
movement’’ is problematic as there
could be instances where an employee’s
vision is momentarily obscured and so
it would not be possible to always
provide a continuous, visual
VerDate Aug<31>2005 18:18 Feb 12, 2008 Jkt 214001
observation for the entire duration of the
movement. Further discussions at the
RSAC working group meetings raised
additional concerns. Both labor and
management representatives were
concerned that the requirement meant
that every shoving or pushing
movement would require an employee
to be in position to watch the leading
end of the movement even when doing
so would place the employee in danger.
The proposed rule would have required
employees watching shoving and
pushing movements to walk greater
distances than most current operating
rules and practices require, the result
being a greater likelihood of
experiencing slip, trip or fall injuries.
FRA agrees with these comments. We
certainly did not intend to reduce one
kind of accident only to increase
another type.
AAR suggested an alternative to ‘‘the
duration of the shoving movement’’
proposed requirement. AAR’s
suggestion was to change the first
sentence in paragraph (b)(2)(i) to read as
follows: ‘‘[v]isually determining that the
track is clear and will remain clear
either within the range of vision or for
the complete distance the equipment is
to be shoved or pushed.’’ This
alternative is similar to FRA’s proposal
and many current railroad operating
rules, however, the plain meaning of the
alternative does not reflect how it is
typically interpreted. The plain meaning
of this alternative appears to also
contain the expectation that a
continuous, visual observation for the
entire duration of the movement is
required even if the ‘‘the duration of the
shoving movement’’ language has been
removed. Meanwhile, a near universal
position was that employees can safely
make shoving or pushing movements
without continuously observing the
leading car for the entire distance of the
movement. The key to a safe move is the
determination that the portion of the
track to be used for the intended move
is clear. The determination that the
track is clear will be made prior to
initiating a shoving or pushing
movement, but additional portions of
track may be determined to be clear
during the duration of one continuous
shoving or pushing movement.
Furthermore, FRA did not agree with
AAR’s suggestion to include the phrase
‘‘and will remain clear’’ as this phrase
adds a condition that is outside of the
control of the employee providing the
point protection.
After considering the comments, FRA
realized that its proposed rule was also
flawed in that it was repetitive. The
definition of ‘‘track is clear’’ and the
proposed point protection paragraph
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8477
both required that a crewmember or
qualified employee make a visual
determination. This repetitive issue has
been resolved by removing the visual
determination requirement from the
‘‘track is clear’’ definition.
The final rule differs from the
proposed rule in that the determination
that the track is clear no longer
explicitly requires that the
determination can be made ‘‘either
within the range of vision or for the
complete distance the equipment is to
be shoved or pushed.’’ FRA believes this
proposed phrase merely added
extraneous language, and thus it has
been deleted from the final rule. As a
practical matter, the deletion of this
phrase should not have any impact on
how an employee provides point
protection. If a crewmember or other
qualified employee responsible for
controlling a shoving or pushing
movement can ensure that every
requirement specified in the definition
of track is clear has been met, the
employee may initiate and continue the
movement for the full distance of the
movement. For example, if a shoving
movement of less than 100 car lengths
is to be made onto track that is capable
of holding 100 cars and a crewmember
or other qualified employee observes
that the track is clear for the entire
length of the track, the employee may
initiate movement onto or down the
track; as the shoving movement
continues, the employee will provide
updates to the locomotive engineer, as
necessary, until the entire movement is
complete. Meanwhile, if the employee
providing the visual determination that
the track is clear can only see part of the
way down the track to be shoved or
pushed, and does not have the option to
travel ahead of the movement to
determine that the track is clear for the
entire length of the movement, the
employee shall only be permitted to
initiate movement for the distance that
the employee can visually ensure that
the track is clear. In this second
example, the facts are the same except
that there is curvature in the track that
does not allow the observing employee
to see more than 20 car lengths at a
time; in this situation, the employee
may initiate movement onto or down
the track but must have either
continuous visual contact with the
locomotive engineer or be in radio
communication with the locomotive
engineer, so as to provide distance
instruction on how far the locomotive
engineer may safely shove, until the
shoving or pushing movement is
complete. In other words, there is
nothing in this rule that prohibits
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incremental or multiple determinations
that the track is clear until the complete
distance to be shoved or pushed is
traversed.
In paragraph (b)(3), the term ‘‘rolling
equipment,’’ which is defined in
§ 218.5, is used. The definition of
‘‘rolling equipment’’ states that the term
‘‘includes locomotives, railroad cars,
and one or more locomotives coupled to
one or more cars.’’ Thus, the definition
of ‘‘rolling equipment’’ explicitly
includes locomotives. Meanwhile, FRA
is aware that some railroads may
incorrectly consider any movements
involving consists made of locomotives
alone not to be shoving or pushing
movements. By adding that lite
locomotives are also covered in
paragraph (b)(3) and defining ‘‘lite
locomotive consist’’ in this subpart,
FRA is ensuring that lite locomotive
consists are covered by the shoving or
pushing movement requirements. To do
otherwise would permit lite locomotive
consists to shove blind without
adequate point protection.
FRA has expressed the intention to
provide railroads and qualified
employees with the option of making
the visual determination required in
paragraph (b)(3)(i) with the aid of
monitored cameras or other
technological means, provided that the
technological means and attendant
procedures provide an equivalent level
of protection to that of a direct visual
determination. Railroads shall ensure
that any monitored camera have
sufficient resolution and real time
coverage to provide protection equal to
a direct visual determination.
Concerning attendant procedures, one
such procedure may be for an employee
viewing a monitor to communicate
updates to the locomotive engineer or
controlling crewmember at appropriate
intervals. FRA equates the employee
monitoring the camera to the employee
controlling the movement who must not
engage in any task unrelated to the
oversight of the movement; thus, each
railroad utilizing such cameras shall
implement attendant procedures
limiting any of the monitoring
employee’s ancillary duties that might
distract from the employee’s ability to
provide continual visual determinations
and communication.
FRA also amended paragraph (b)(3)(i)
to add a requirement that if a railroad
intends to use monitored cameras or
other technology to determine that the
track is clear, the railroad is required to
pwalker on PROD1PC71 with RULES3
abide by the procedures prescribed in
this section as well as the additional
requirements prescribed in appendix D
to this part. As explained in the analysis
to appendix D, the addition of this
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mandatory appendix is to establish
safeguards for establishing technology
driven point protection. The alternative
would continue the haphazard
application of such technology, without
appropriate assurances of Federal, State,
or local governmental input when such
technology potentially impacts the
general public.
Other technological means may
include, but are not limited to, a
completely circuited track indicating
track occupancy, and electronic switch
position indicators. AAR requested that
FRA consider shove lights to be an
‘‘equivalent technological means.’’
Shove lights are lights that are
sequentially circuited on the ends of
tracks to indicate a shoving movement’s
approach to the opposite end of a track.
Shove lights are limited, however, as
they do not show if the track is
occupied between the entrance of the
track and the beginning of the track
circuit; in other words, shove lights
alone cannot provide absolute
notification that the track is clear of
equipment. Consequently, FRA is
willing to consider shove lights as an
acceptable technological alternative to
visually protecting the point as long as
either: (1) The track is completely
circuited to indicate occupancy; or, (2)
a visual determination is made that the
track is clear to the beginning of the
circuited section of the track.
The requirements listed in proposed
paragraph (b)(2)(ii), redesignated as
paragraph (b)(3)(ii), state that a
crewmember or other qualified
employee give signals or instructions
necessary to control the movement.
Such signals or instructions may be
made verbally, i.e., either via face-to-
face or radio communication. However,
any effective method of communication
is acceptable. For example, some
acceptable forms of communication
include, but are not limited to, hand
signals, whistle signals, and electronic
signals utilizing remote control
technology.
In paragraph (c), FRA requires that all
remote control movements be treated as
shoving or pushing movements, except
when the remote control operation is
being conducted like a conventional
pulling operation such that the operator
controlling the movement is riding the
leading locomotive in a position to
observe conditions ahead in the
direction of movement. Under this
situation, the operator is riding the
point in a position to visually determine
that the track ahead of the movement is
clear, and is certainly in a position to
determine the direction the equipment
is moving. One particular reason for a
remote control operator to ride the point
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is to be in a position to observe that
grade crossings are not obstructed.
Paragraph (c) also states two
additional requirements for remote
control operations during shoving or
pushing movements. The first
additional requirement, paragraph
(c)(1), is necessary so that the remote
control operator, either directly or
indirectly, can confirm that the
movement is observed moving in the
direction intended. If the remote control
operator does not confirm or receive
confirmation that the equipment is
traveling in the intended direction, the
operator must immediately stop the
movement. Accident reports indicate
that remote control operators who have
forgotten which way the controlling
locomotive is headed may
unintentionally make a reverse
movement when a forward movement
was intended, or vice versa; had these
operators been abiding by this rule, at
least some of these types of accidents
could have been avoided by abiding by
this rule. Further discussion on this
issue may be found in the
SUPPLEMENTARY INFORMATION section
titled ‘‘Situational Awareness.’’
FRA suggests that each railroad
instruct its remote control operators
that, whenever possible, the operator or
crewmember should view the
controlling locomotive when
determining the direction of movement,
as opposed to any other piece of
equipment in the movement. It is not
always logistically possible or safe for
the operator or crewmember to have
direct visual contact with the
controlling locomotive when initiating
movement—which explains why FRA is
not requiring it. However, where it is
logistically possible and safe to do so,
that should be the preferred method. If
a person is viewing the direction the
controlling locomotive moves, the
person would have a greater chance of
observing a problem with the
locomotive becoming uncoupled from
the rest of the movement or a similar
problem if a coupler broke between
other equipment in the movement. In
the alternative, as intended by
paragraph (c)(1), an operator or
crewmember watching the equipment
for the direction of movement will need
to be cognizant of time and distance
from the controlling locomotive so that
immediate action may be taken to stop
the movement if the movement is
initiated but not observed to be moving
within expectations.
The title of paragraph (c) has been
changed from ‘‘Remote control
movement requirements’’ in the NPRM
to ‘‘Additional requirements for remote
control movements.’’ The reason for the
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change in title is to emphasize that the
requirements in paragraph (c) apply to
shoving movements implemented with
remote control locomotives and adds
additional requirements to those general
movement requirements described in
paragraph (b). In other words, by
changing the title, we are hoping to
avoid confusion that some railroads
might perceive paragraph (c) as the only
requirements for shoving movements
implemented with remote control
locomotives. Comments were not
received regarding paragraph (c).
Paragraph (c)(2) adds another
requirement for remote control
movements that was suggested in the
preamble of the NPRM, but was not part
of the proposed regulatory text. At the
end of the section-by-section analysis
for this section in the NPRM, FRA
raised concerns regarding the reliance
on technology used to contain remote
control operations within zones, where
remote control operators cannot directly
observe the far end of the pull-out
movement. Such technology is used to
prevent incursions into other rail
operations. The NPRM noted that
‘‘[a]lthough the rule text does not
contain language on this point, FRA
requests comment on whether such
technology should be required to fail
safe in design or at least include
redundant safeguards.’’ FRA did not
receive any comments on this issue and
has decided to act to address the
concern. The safety concern is that
without a specific requirement some
railroads might try to implement
technology that is not demonstrated to
be safe and therefore provides a false
sense of protection to remote control
crews. Without some kind of standard
for concluding that the technology has
either been demonstrated to be failsafe
or demonstrated to provide suitable
redundancy to prevent unsafe failure, a
remote control crew could unreasonably
conclude that the technology is safe
enough to stop a movement when such
reliance is unfounded. Given this
inevitable reliance, failsafe or redundant
technology is required to prevent
collisions and derailments at the
perimeter of these zones. The pull-out
protection technology would not likely
be relied upon as the typical method of
stopping the movement from leaving the
zone, but might be used to expedite a
movement where the crew would
ordinarily be slowed down by having to
count cars and estimate the length of the
pwalker on PROD1PC71 with RULES3
movement in relation to the
configuration of the facility. When
determining whether the technology,
such as transponders backed up by a
global positioning system (GPS) with a
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facility database is acceptable, FRA
finds that 49 CFR part 236, subpart H
and the corresponding appendix C to
part 236 (‘‘Safety Assurance Criteria and
Processes’’) contains appropriate safety
analysis principles.
In paragraph (d), FRA recognizes that
many railroads utilizing remote control
technology will create a designated area
of track, controlled by a remote control
operator, that can make a remote control
operation more efficient; this area is
called a remote control zone and it is
defined in this subpart. When a remote
control zone is activated, a designated
remote control operator has the
authority to deny other movements
entry into the tracks designated as
within the zone. However, it is not until
the remote control crewmembers
determine that a particular segment
meets the definition of ‘‘track is clear’’
that the operation may shove, push, or
pull cars into the cleared track segment
of the zone as required in paragraph
(b)(3).
Paragraph (d) permits the point
protection required by paragraph (b)(3)
to be provided by a prior determination
that the track is clear for a remote
control operation that is shoving within
an activated remote control zone, as
long as the movement will take place on
the pull-out end, the zone is not jointly
occupied, and certain conditions are
met for the prior determination that
provides a reasonable assurance that the
track is clear. If conditions change, such
that the track is no longer clear, a new
determination that the track is clear
must be made. This paragraph has
undergone substantial revision from the
NPRM, although the underlying concept
has remained unchanged. In the NPRM,
the proposed rule mis-characterized this
requirement as an exception to the point
protection requirement, when we
intended and described a point
protection requirement. The final rule
clarifies FRA’s intent that point
protection, and all the general
movement requirements under
paragraph (b), are applicable to remote
control movements in the zone when
the remote control movement is to take
advantage of the zone setup. Thus,
when the movement occurs in an
activated zone, on the pull-out end, and
is not jointly occupied, it is possible for
the remote control operator to rely on a
prior determination that the track is
clear rather than making a separate
determination for each shoving or
pushing movement.
Paragraph (d) states the obvious that,
at some point in time, after the zone is
activated, an initial determination must
be made that the track is clear. If there
is no initial determination, then the
PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
8479
crew certainly does not have any prior
determination to fall back on. Paragraph
(d)(3) provides the requirements for
determining that a prior determination
that the track is clear may be relied on.
These changes, which are further
described below, should better reflect,
in hopefully what will be considered
plain language, what a remote control
crew needs to do to determine that the
track is clear so that railroads may take
advantage of shoving or pushing within
a remote control zone.
Paragraph (d)(1) specifies that the
remote control zone exception to a
separate track is clear determination for
each shoving or pushing movement
applies only when the controlling
locomotive of the remote control
movement is on the leading end in the
direction of movement. This describes a
movement that is typically referred to as
a remote control movement occurring
on the pull-out end, and that reference
is made in this paragraph. When the
controlling remote control locomotive is
not located on the leading end in the
direction of movement, the remote
control crew cannot rely on a prior
determination that the track is clear and
shall, instead make a separate track is
clear determination for each shoving or
pushing movement regardless of
whether the operation is to take place
within the remote control zone. FRA
does not subscribe to the view that an
entire yard can be characterized as a
remote control zone and, as long as it is
not jointly occupied, the remote control
crewmembers are free to shove or push
anywhere in the zone without
determining that the track is clear for
each shoving or pushing movement;
again, the reason FRA disagrees with
this view is that we believe that is an
unsafe practice and that is why the rule
only permits the zone exception to
apply to remote control movements
when the controlling locomotive of the
remote control movement is on the
leading end in the direction of
movement.
Paragraph (d)(1) is changed from the
NPRM to reflect that the remote control
movement does not need to be
‘‘operated from a controlling
locomotive’’ to fit the exception, but
instead ‘‘the controlling locomotive’’ of
the movement shall be on the leading
end in the direction of the movement.
This change was made to prevent future
confusion that the proposed language
might be interpreted to only apply when
a remote control operator was actually
on the controlling locomotive, when it
was intended to allow for the operator
to either be on the locomotive or
someplace else when the controlling
locomotive on the leading end in the
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direction of movement is operated. In
other words, the amendment is made to
specifically include remote control
operations no matter where the operator
is located.
FRA has switched the numbers of
proposed paragraphs (d)(2) and (d)(3) in
an effort to lay out the sequence of
determinations in a logical order.
Paragraph (d)(2) requires that the zone
may not be jointly occupied at the time
that a remote control crew exercises the
exception permitting the reliance on a
prior determination that the track is
clear. This condition is directed to
prevent collisions between a remote
control operation that is controlling the
zone, and any equipment or switches
controlled or manipulated by a jointly
occupying crew. Thus, this condition
means that if there is a jointly
occupying crew, the remote control
crewmembers shall determine that the
track is clear for each shoving or
pushing movement and shall not rely on
a prior determination that the track is
clear. FRA has deleted from the
proposed requirement the phrase ‘‘and
has not been jointly occupied since the
last determination that the track is
clear.’’ This condition has been deleted
because an amendment to proposed
paragraph (d)(2), redesignated (b)(3)(iii)
addresses the issue by diverting from
this proposed requirement. That is,
paragraph (b)(3)(iii) permits the last
jointly occupying crew to make a direct
relay of the track is clear determination
to the remote control crewmembers. The
basis for this latter change is that
accidents have generally occurred when
jointly occupying crews did not seek
permission into the remote control zone,
not that the jointly occupying crews
failed to provide accurate information
regarding whether the track was left
clear. This issue is explained in more
detail below.
Paragraph (d)(3) describes the three
methods for a remote control crew to
determine whether a prior
determination that the track is clear is
acceptable when the controlling
locomotive of the remote control
movement is on the leading end in the
direction of movement and the zone is
not jointly occupied. Paragraph (d)(3)(i)
describes that, if the remote control
crewmembers themselves made the
prior determination, it is acceptable and
a separate determination is unnecessary
for each movement. Paragraph (d)(3)(ii)
carries over the option from the
proposed rule that one remote control
pwalker on PROD1PC71 with RULES3
crew may pass onto a relieving remote
control crew an activated zone that
meets the definition of track is clear.
Some railroads currently allow for this
transfer for efficiency purposes;
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otherwise, any relieving crew would
need to make an initial determination
that the pull-out end of the track is
clear.
FRA has added a third option, not
proposed, that would permit the
crewmembers from a jointly occupying
crew to directly communicate to a
remote control crewmember that the
zone is no longer jointly occupied and
meets the requirements for track is clear.
This option is based on an RSAC
consensus item that recommended
allowing the verbal determination that
the ‘‘track is clear’’ between the crews
jointly occupying the remote control
zone, provided that it is a direct
communication between the crews
involved, and not through a third party.
The RSAC’s rationale is that a verbal,
direct communication to determine
‘‘track is clear’’ between remote control
crews is currently permitted at shift
changes, so why not after a joint
occupancy? After further review of
FRA’s accident database, we cannot find
sufficient justification to disallow this
practice. If FRA develops any accident
data to suggest that the practices
permitted by paragraphs (d)(3)(ii) or (iii)
are unsafe, we will consider amending
the rule. The addition of this third
option is largely based on comments
received by the AAR stating that this
option is currently implemented safely
by its members. We want to emphasize
that the ‘‘direct’’ communication
requirement means that the crew that
completed its joint occupation of the
zone must speak directly with one of the
remote control crewmembers. Thus, it is
unacceptable for a yardmaster or other
employee to relay the information
between the two sets of crewmembers.
There is a greater chance of a
communication error if information is
allowed to be relayed from someone
who does not have firsthand
information. Indirect communication
reduces the likelihood that a remote
control crewmember would have the
option to ask the crew that previously
jointly occupied the zone a follow up
question. ‘‘Directly communicate,’’ in
this instance, does not mean that
crewmembers are prohibited from
communicating by radio, or any other
communication that is not face-to-face.
As further clarification, the rule
includes the description that ‘‘directly
communicates’’ means ‘‘not through a
third party.’’ To illustrate this point,
please consider the situation where two
remote control operations are working
side-by-side in the same remote control
area. The two operations cannot share a
pull-out end safely, because that would
mean there is joint occupation, and,
thus, each operation must be in control
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of different zones. (For the difference
between a remote control area and a
remote control zone, please see the
section analysis for the definition of
‘‘remote control zone’’ under § 218.93).
Likewise, if another crew enters and
departs the remote control zone, that
last jointly occupying crew cannot
contact just any remote control
crewmember working in the area, but
instead is required to directly
communicate with a remote control
crewmember from the crew of the zone
just departed. To allow otherwise would
mean that, at best, the last jointly
occupying crew would pass on the
determination that the track is clear
indirectly, and, at worst, not at all.
As specified in paragraph (e), shoving
or pushing movements are safe under
certain operating conditions and, thus,
FRA chooses to exempt these listed
operations from the requirements in
paragraphs (b) through (d) under the
specified conditions. One, paragraph
(e)(1) exempts push-pull operations
when operated from the leading end in
the direction of movement because if a
cab control car is on the leading end of
a movement and a locomotive engineer
is operating the train from the cab
control car, the operation is as safe as a
conventional locomotive operation that
does not involve shoving or pushing.
Two, paragraph (e)(2) also describes a
situation where a locomotive engineer is
operating a train from the leading end
in the direction of movement, albeit
with assistance from other power. That
other power assisting in the movement
may be occupied and operated by a
locomotive engineer, i.e., a manned
helper locomotive, or an unmanned
locomotive, i.e., a distributed power
locomotive. Because the additional
power may be located in the back or the
middle of the train, this type of
operation could be considered a shoving
or pushing movement. The exception
clarifies that as long as a manned
locomotive is being operated from the
leading end of the train in the direction
of movement, this type of operation will
not be considered a shoving or pushing
movement that must comply with
paragraphs (b) through (d). FRA has
made minor changes to this paragraph
from the NPRM in order to clarify that
the manned helper locomotives or
distributed power shall be ‘‘assisting a
train’’ when ‘‘the train is being’’
operated from the leading end in the
direction of movement for the exception
to apply.
Pursuant to paragraph (e)(3), the third
operational exception to the shoving or
pushing minimum requirements set out
in paragraphs (b) through (d) of this
section is the allowance of the
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performance of roadway maintenance
activity under the direct control of a
roadway worker performing work in
accordance with railroad operating rules
specific to roadway workers. In other
words, a crewmember or qualified
employee is not required to provide
point protection when a train crew is
working under the direct control of a
roadway worker and that roadway
worker can provide adequate point
protection. For example, if a ballast or
work train is operated by a train crew,
a roadway worker may direct the ballast
or work train crew to move the train in
order to perform the maintenance
activity. This exception would not
permit a railroad to have an operating
rule allowing a roadway worker to
direct a train crew on logistical or
revenue moves and such action would
violate paragraph (c) of this section.
Paragraph (e)(4) permits an exception
from the shoving and pushing rules
because few of the shoving or pushing
accidents have occurred on a main track
or signaled siding. From 2002 through
2005, only about 5 percent of shoving or
pushing accidents occurred on main
track. However, in order to make this
exemption work, a long list of
conditions apply that would provide an
equivalent level of safety to that of the
requirements found in paragraphs (b)
through (d) of this section. The
requirements should look familiar to the
industry as the requirements follow
commonly used railroad operating rules.
See General Code of Operating Rules
(GCOR) 5th Edition, (effective Apr. 3,
2005) Rules 6.5, 6.6, and 6.32, and
Northeast Operating Rules Advisory
Committee (NORAC) Rules 116 and
138e. The following clarification is
provided for a few of the requirements
that may not be quite as evident as the
others. Paragraph (e)(4)(i)(A) requires
that if another movement or work
authority is in effect within the same or
overlapping limits, the shoving or
pushing movement shall not be initiated
until the leading end of the movement
is protected by a qualified employee.
Paragraph (e)(4)(ii) requires that
movement is limited to the train’s
authority because the danger of an
accident increases substantially when a
train shoves beyond the limits of its
current authority. The requirement in
paragraph (e)(4)(iv) is met by meeting
either (A), (B), or (C), as meeting any
one of these three requirements should
ensure safe movement into and over a
pwalker on PROD1PC71 with RULES3
highway-rail grade crossing or
pedestrian crossing as those terms are
defined in the definitions section of this
subpart. To meet the requirement of
paragraph (e)(4)(iv)(B), a designated and
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qualified ‘‘employee,’’ as defined in this
subpart, must be stationed at the
crossing and have the capability to
communicate with trains in sufficient
time to inform the train of the condition
of the crossing; the rule does not specify
the method of communication as the
key issue is that the communication be
effective. In paragraph (e)(4)(v), FRA
uses the terms ‘‘interlocking limits,’’
which is defined in § 218.5 of this part,
and ‘‘controlled point limits,’’ which is
undefined but FRA considers as having
the same meaning as ‘‘interlocking
limits.’’ Interlocking limits means the
tracks between the opposing home
signals of an interlocking. In paragraph
(e)(4)(v)(C), a crewmember is in a
position to determine that the train’s
movement has occupied the circuit
controlling a signal such that the
crewmember has the ability to
determine that it is the leading wheels
of his or her own movement that has
activated the signal circuit.
Section 218.101 Leaving Rolling and
On-Track Maintenance-of-Way
Equipment in the Clear
The title of this section has changed
from the NPRM, as well as a
corresponding change in paragraph (b),
to clarify that the section is intended to
apply to both rolling and on-track
maintenance-of-way equipment. In the
NPRM, FRA used the generic term
‘‘equipment’’ and assumed that the term
would be understood to include both
types of equipment. Rather than risk
confusion regarding whether the
regulation only applies to rolling
equipment, the rule now specifies that
both rolling equipment and on-track
maintenance-of-way equipment are
covered by this section.
The requirement proposed in
paragraph (a) has been revised, but the
reasons behind the requirement remains
the same. The reasons behind this
paragraph are to ensure that (1) each
railroad adopt and comply with an
operating rule which complies with the
requirements of this section; and (2)
when any person including, but not
limited to, each railroad, railroad
officer, supervisor, and employee
violates any requirement of an operating
rule which complies with the
requirements of this section, that person
shall be considered to have violated the
requirements of this section. The NPRM
was not intended to mean, but could
possibly have read, that each person
was only to uphold and comply with
the railroad’s operating rule and not the
regulation itself. The revisions to this
paragraph are intended to clarify FRA’s
intent that each railroad adopt and
comply with an operating rule which
PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
8481
establishes minimum requirements for
preventing equipment from fouling
connecting tracks unsafely, and that
each railroad implement procedures
that will enable employees to identify
when the equipment is fouling. The
purpose for requiring that each railroad,
railroad officer, supervisor, and
employee shall be considered in
violation of this section when a railroad
operating rule that complies with this
section is violated is so that FRA has the
authority to enforce this regulation as
opposed to merely requiring that each
railroad maintain and have in effect
such a rule. In order to fully understand
this section, one must consider FRA’s
definitions of ‘‘clearance point’’ and
‘‘foul or fouling a track’’ under § 218.93.
Paragraph (b) sets forth the general
rule that rolling and on-track
maintenance-of-way equipment not be
left where it will foul a connecting track
except as permitted in paragraphs (b)(1)
through (b)(4) discussed below. This
paragraph differs from FRA’s proposed
rule in that each of the two proposed
exceptions were divided into two
simpler exceptions. We hope that by
breaking out the two proposed
exceptions into four exceptions that the
section will be easier to understand.
Paragraph (b)(1) permits equipment
standing on a main track to foul a siding
track switch if the fouling switch is
lined for the main track on which the
equipment is standing. For example, it
is permissible for a train on the main
track to be stopped at an absolute signal
with the rear of the train fouling a siding
switch lined for the main track upon
which the train is standing.
Additionally, this would prohibit the
switch that is being fouled from being
thrown underneath the train while it is
fouling the switch. See also
§ 218.103(b)(4) and (b)(7). Signal
systems and main track authority rules
should protect such movements from
approaching trains.
Paragraph (b)(2) permits equipment
standing on a siding to foul a main track
switch if the fouling switch is lined for
the siding on which the equipment is
standing. While this is permissible, it is
obviously not safe to do so unless
movements on the main track are
required to operate prepared to stop for
the switch.
Paragraph (b)(3) permits equipment
that is standing on a yard switching lead
track (commonly referred to as a lead
track, switching lead, or ladder track) to
foul a yard track if the switch is lined
for the yard switching lead track upon
which the equipment is standing.
Conversely, it is not permissible for
equipment to be standing on a yard
track and foul the yard switching lead
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track, regardless of the position of the
switch on which the equipment is
standing (fouling). In simple terms, it is
permissible to occupy a yard switching
lead track and foul a track connected to
it, but it is not permissible to occupy the
connecting track in a manner that fouls
the yard switching lead track.
Paragraph (b)(4) permits equipment to
be left where it will foul a connecting
track when the equipment is on an
industry track beyond the clearance
point of the switch leading to the
industry. During the RSAC process,
several commenters raised the issue that
when picking up or setting off cars at an
industry customer, a railroad is often
faced with limited industry track on
which to set off or pick up cars. The
problem of limited track at some
industries would make compliance with
this rule extremely difficult within
those industries and could potentially
have a detrimental economic effect on
those industry customers, as well as the
railroads that service those industry
customers. FRA’s accident/incident data
does not reflect that fouling within an
industry has been a problem. FRA
accident data indicates that of the 5%
total human factor accidents caused by
equipment left in the foul during the
four-year period 2003 through 2006,
only 0.5% (1⁄2 of one percent) occurred
on industry tracks. Further, industries
are constantly moving equipment
around within their plants for loading/
unloading, or for other purposes,
thereby rendering the enforceability of
the regulation within industry tracks
somewhat dubious at best. Meanwhile,
if an industry has limited track, and that
track is crowded with rolling
equipment, FRA expects railroads
servicing those industries to operate at
extremely slow speeds and with
particularly careful observation to
protect all movements from anything
that may be potentially fouling the
track. This change from the NPRM is
based on an RSAC recommendation.
FRA will certainly consider initiating a
new rulemaking to include industry
tracks in this section if accident/
incidents increase due to fouling
equipment.
Paragraph (c) requires that each
railroad, whether at the system,
division, or terminal level, shall
implement procedures for instructing
employees who handle equipment so
that the employees can identify
clearance points and avoid leaving
equipment out to foul. One way to
pwalker on PROD1PC71 with RULES3
implement such procedures is to show
employees that there are readily
observable clearance points on or near
the track, e.g., marks on the rails or ties
indicating a clearance point. When
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clearance points are not identified on or
near the track, railroads must institute
procedures for instructing employees on
how to calculate clearance points; e.g.,
a railroad may choose to implement a
procedure requiring employees to stand
next to the rail and extend an arm to
simulate the width of equipment. Great
care should be used in instituting
procedures for determining clearance
points so that the margin of error is
appropriate where employees are
permitted to ride the side of a car and
as the clearance point would be further
back on the track for employees with
bigger or longer bodies than the average
person. This section is not intended to
apply to close clearance as it relates to
buildings, loading docks, or doorways,
although a railroad may choose to
provide procedures for implementing
safe operations under such
circumstances.
FRA received a comment from the
AAR to delete this entire section
because, in AAR’s view, this section
duplicates requirements found in other
sections of the NPRM. After discussions
in the RSAC process, the RSAC
achieved consensus that this section is
necessary, and recommended that FRA
retain it. The requirement that
equipment not be left where it will foul
other tracks is a long-standing operating
rule in the industry which is merely
being Federalized to strengthen
enforceability. Leaving equipment in the
foul accounted for 5% of all human
factor accidents during the four-year
period 2003 through 2006. The RSAC
acknowledged that there are other
elements in the NPRM that require the
track to be clear prior to a pushing or
shoving movement, and for all hand-
operated switches to be properly lined
before fouling a track, and that these
requirements might appear,
perfunctorily, to obviate the need for a
fouling rule. However, the RSAC also
recognized that leaving equipment in
the foul sets the stage for a potential
accident in the event one or more of the
ancillary requirements in the regulation
are overlooked. In light of RSAC’s
consensus recommendation, and FRA’s
view that a specific rule is useful to
reducing the many accidents attributed
to failing to leave equipment in the
clear, FRA is retaining this section.
FRA received several comments from
BLET suggesting operational situations
where it may be possible to leave
equipment in the clear safely. For
example, BLET suggested that FRA
prohibit leaving equipment in the foul
where the authorized speed is greater
than restricted speed. Another BLET
suggestion was for FRA to add a
requirement that permission must be
PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
obtained from the employee controlling
the track prior to leaving equipment in
the foul. FRA appreciates BLET’s
suggestions because each suggestion
provided the basis for useful RSAC
discussions exploring the intricacies of
leaving equipment in the clear. In the
end, though, FRA did not adopt BLET’s
suggestions because adding such
suggestions would likely complicate
what FRA believes is a fairly clear and
concise rule.
Finally, FRA acknowledges that some
railroads have yard tracks or other types
of track arrangements outside of a yard
which are not described as exceptions to
the general requirement in paragraph
(b), and fouling equipment under these
particular track arrangements may not
pose a real safety concern. Because of
the many different types of track
arrangements that are atypical, it would
be difficult to craft a rule that fully
encompasses every such arrangement
and excepts those that pose no danger.
Where there is truly an atypical
arrangement that appears to violate this
section but poses no true safety hazard,
FRA intends to consider the safety
implications when deciding whether to
exercise its enforcement authority.
Section 218.103 Hand-Operated
Switches, Including Crossover Switches
In the NPRM, this section was titled
‘‘Hand-operated Switches and Derails.’’
After the RSAC process had concluded,
FRA considered the scope of this
section and decided that it covered
several interrelated but separate issues.
By including so many requirements in
one section, the section appeared
disjointed. Consequently, this section
differs from the proposed section
because it contains only a portion of the
requirements found in proposed
§ 218.103. The rest of the proposed
requirements have been redesignated
within §§ 218.105, 218.107, and
218.109. Although each of these
sections contains slight modifications
from the proposed requirements,
overall, the final rule does not differ
greatly in its requirement from what was
proposed.
The requirement proposed in
paragraph (a) has been revised, but the
reasons behind the requirement remains
the same. The reasons behind this
paragraph are to ensure that (1) each
railroad adopt and comply with an
operating rule which complies with the
requirements of this section; and (2)
when any person including, but not
limited to, each railroad, railroad
officer, supervisor, and employee
violates any requirement of an operating
rule which complies with the
requirements of this section, that person
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be considered to have violated the
requirements of this section. The NPRM
was not intended to mean, but could
possibly have read, that each person
was only to uphold and comply with
the railroad’s operating rule and not the
regulation itself. The purpose for
requiring that each railroad, railroad
officer, supervisor, and employee shall
be considered in violation of this
section when a railroad operating rule
that complies with this section is
violated is so that FRA has the authority
to enforce this regulation as opposed to
merely requiring that each railroad
maintain and have in effect such a rule.
This section applies to all hand-
operated switches, as that term is
defined in § 218.93, including hand-
operated crossover switches. This
represents a departure from FRA’s
current enforcement scheme which is
limited to hand-operated switches in
non-signaled territory as specified in EO
24.
Paragraph (a)(2) has been added to
require that each railroad specify
minimum requirements for an adequate
job briefing concerning hand-operated
switches, including crossover switches.
This requirement was found in the
proposed rule in paragraph (i), but was
redesignated in paragraph (a)(1).
Because this is such a fundamental
requirement, it was redesignated at the
beginning of the section. As previously
mentioned in the SUPPLEMENTARY
INFORMATION section titled ‘‘Accident at
Graniteville, SC and Safety Advisory
2005–01,’’ NTSB found that catastrophic
accidents, such as the one at
Graniteville, SC, could be prevented by
adequate job briefings. The requirement
is for each railroad to have its own rules
and procedures governing the minimum
requirements for a satisfactory job
briefing, which to FRA’s knowledge,
nearly all railroads already do. It is
essential that employees working
together know exactly what each
person’s role is in the job, what the
methods of operation and protection
will be, and the order in which
segments of the job are to be
accomplished. With such knowledge,
one employee could recognize the
mistakes of another and correct them
before any operating rule violation or
serious accident occurred.
Paragraph (b) sets forth certain general
rules for employees who operate or
verify the position of a hand-operated
switch. A reference to § 218.93 has been
added so that anyone reading this
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section will understand that ‘‘hand-
operated switch’’ has a specific meaning
for this section and subpart. Proposed
paragraph (i)(2) has been redesignated
as paragraph (b)(1). Paragraph (b)(1)
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requires frequent job briefings at
important junctures. It is critical that
employees know what is expected of
them before they start working, know
what is expected to happen if the work
plan changes after work is initiated but
before the work is completed, and to
confirm whether all the work was
completed to everyone’s satisfaction and
according to the operating rules. For
experienced employees, each job
briefing should not be a particularly
long meeting; in fact, FRA expects that
some job briefings may last less than
one minute, but the length of an
adequate briefing will most likely
depend on the complexity of the job.
Proposed paragraph (b)(1) has been
redesignated as paragraph (b)(2). This
paragraph sets forth the fundamental
requirement that an employee operating
or verifying a hand-operated switch’s
position shall be ‘‘qualified,’’ as that
term is defined in this subpart. It would
be easy for an unqualified person to
make a mistake in switch alignment or
fail to recognize a defective switch
because, unlike a qualified employee,
the unqualified person is not trained on
proper switch operation or on how to
detect a defective switch. It is exactly
these types of defective conditions that
cause accidents and may be preventable
by promulgation of this rule.
Proposed paragraph (b)(2) has been
redesignated as paragraph (b)(3). This
paragraph establishes a requirement that
each railroad have an operating rule
warning employees that each person
who operates or verifies the position of
a hand-operated switch is individually
responsible for the position of the
switch in use. The purpose of this
paragraph is to remind an employee that
FRA may take enforcement action
against the employee personally for a
willful violation. FRA hopes that the
personal liability aspect of this rule will
reinforce among employees the critical
importance of ensuring that hand-
operated switches are left properly lined
before leaving the location of the switch.
Proposed paragraphs (b)(3) and (b)(4)
have been redesignated as paragraphs
(b)(4) and (b)(5) respectively. These
paragraphs require employees to make
certain observations. A slight
modification has been made to each of
these paragraphs by changing the phrase
‘‘visually ensure’’ to ‘‘visually
determine.’’ The reason for this change
is to maintain consistent terminology
throughout this subpart. The
requirements listed are to ‘‘visually
determine’’ that hand-operated switches
are properly lined for the intended
route, that no equipment is fouling the
switches, that the points fit properly,
and the target, if so equipped,
PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
8483
corresponds with the switch’s position.
These requirements specify the need for
the operating/verifying employee to take
a good, hard look at the switch. For
example, a proper observation would
deduce whether the switch points fit
properly against the stock rail, i.e. no
gaps. The operating/verifying employee
should certainly not be relying on
second-hand knowledge of the switch or
derail’s position in verifying its
position.
Paragraph (b)(4) differs from the
proposed requirement in that FRA has
added that when an employee visually
determines that hand-operated switches
are properly lined for the intended route
that the employee also visually
determine that ‘‘no equipment is fouling
the switches.’’ If there is rolling
equipment close by, an employee may
have to identify the clearance points to
determine whether the equipment is in
fact fouling or it is safe to operate over
the switch. See § 218.101. For example,
if an employee can see that the switch
is properly lined from the locomotive
cab but is not absolutely certain that
rolling equipment is in the clear, this
rule prohibits movement over the
switch until a proper determination can
be made; in this example, the situation
will likely require that the movement be
stopped and a crew member get off the
locomotive or train to determine the
clearance points. If there is another
method to safely determine the
clearance points, e.g., if the rail is
marked, then the requirement may be
satisfied by this alternative method for
determining the clearance points. FRA
is not requiring that an employee
disembark from a movement in all
instances to determine clearance points,
but is instead requiring that employees
act responsibly when making this visual
determination.
The issues addressed by proposed
paragraphs (b)(5) and (b)(6) have been
addressed by redesignated paragraph
(b)(6). Paragraph (b)(5) had proposed a
requirement that if the switch or derail
is equipped with a lock, hook or latch,
it must be in the hasp, before making
movements in either direction over the
switch. Proposed paragraph (b)(6)
referred to physically testing a hand-
operated switch or derail’s lock to
ensure it is secured. FRA stated in the
proposed section-by-section analysis,
and we restate here that this regulation
does not require switches to be
equipped with locks, hooks or latches.
FRA’s intention remains that employees
must ensure that the switch is secured
from unintentional movement of the
switch points before making movements
in either direction over the switch.
Rather than confuse the requirements by
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getting into the tedium of explaining
how to lock, hook, or latch when FRA
does not even require such securement
devices, FRA has decided to set forth a
rule that distinguishes the securement
with a lock, hook, or latch from the
securement of the switch from
unintentional movement over it. For
example, some switches do not have
locks, hooks, or latches but are
considered secure from unintentional
movement when the switch handle is
rotated down parallel to the ground. If
the requirement in paragraph (b)(6) is
followed, it should prevent derailments
and accidental misalignments caused by
the switch points moving under
equipment.
FRA has also added the phrase ‘‘after
operating a switch’’ to clarify that the
requirement in paragraph (b)(6) does not
apply to an employee who is merely
verifying the position of a hand-
operated switch, as opposed to actually
operating the position of such a switch.
Operations would be significantly
delayed if every time a train crew
needed to verify the position of a hand-
operated switch it would also have to
ensure that the switch is secure from
unintentional movement of the switch
points. Such a requirement would
require that the train be stopped prior to
movement over the switch, and a
crewmember disembark to check the
switch. It is reasonable to expect that
the last employee who operated the
switch ensured that the switch was
properly secured. If certain types of
switches are found to regularly fail to
protect against unintentional
movements, FRA will consider whether
to initiate a rulemaking then.
A new requirement has been added to
paragraph (b)(7). The final rule adds the
prohibition of operating the switch
while rolling and on-track maintenance-
of-way equipment is fouling the switch.
FRA overlooked this straightforward
prohibition in the NPRM, although the
NPRM arguably covered the issue
through other proposed requirements.
See §§ 218.101(c) and 218.103(d).
However, following the fatal accident of
a remote control operator riding the side
of a car on August 30, 2007, in BNSF’s
Mormon Yard in Stockton, California,
FRA realized that, from an enforcement
perspective, neither of these other
requirements explicitly covered an
employee who operated a switch when
someone else left equipment fouling the
switch. (Although FRA’s investigation
of the Morman Yard accident is on-
pwalker on PROD1PC71 with RULES3
going, preliminary information indicates
that a crew left some cars fouling a
crossover switch, and the crossover
switch was later lined for the crossover
by one member of a remote control crew
VerDate Aug<31>2005 18:18 Feb 12, 2008 Jkt 214001
without moving the fouling cars. The
other remote control crewmember,
while riding the side of a car, operated
through the crossover and was struck
and killed by the static fouling
equipment.) By adding this prohibition
to the final rule, each railroad employee
who operates or verifies the position of
hand-operated switches will be required
to ensure that before a switch is
operated or verified, and a movement
over the switch is initiated, the
employee is responsible for checking
that equipment is not fouling the
switch, whether or not the employee
had left the equipment fouling.
Paragraph (b)(7) has also been
amended for clarification purposes. The
proposed requirement stated that an
employee shall ‘‘ensure that switches
are not operated while the equipment is
standing or moving over a switch.’’ The
final rule requires that an operating/
verifying employee shall ensure that a
switch is not operated while rolling and
on-track maintenance-of-way equipment
is fouling the switch, or standing or
moving over the switch. Thus, in
addition to the added prohibition
previously discussed, the final rule
clarifies what it meant by ‘‘equipment.’’
The reason for this rule is that operating
a switch under a moving train or while
rolling and on-track maintenance-of-
way equipment is standing over it is an
obvious recipe for disaster but
apparently occurs with enough
frequency that a requirement is
necessary to discourage taking this risk.
The NPRM contained a related proposed
requirement that several commenters
believed was ambiguous, and BMWED
described as unnecessary. Given the
retention of the requirement in
paragraph (b)(7), we agree with the
comments. This related proposed
requirement was found in paragraph (f)
of the NPRM. Proposed paragraph (f)
mirrored an operating rule many
railroads have which requires an
employee, who has lined a hand-
operated switch to let equipment enter
or leave the main track, to stand at least
20 feet from that switch until the
movement is complete. Upon further
reflection, FRA believes the proposed
paragraph (f) is not practical to comply
with and enforce in all situations due to
physical restrictions.
Under paragraph (b)(8), it is required
that after operating a switch, an
employee ensure that each switch ,
when not in use, is locked, hooked, or
latched, if so equipped. This means that
if the switch is equipped with a latch or
hook, it must be applied and secured
after it is operated. For locks, this means
the lock is in the hasp, and the lock is
locked. If it is a latch or hook, the latch
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or hook must be in the hasp. For
purposes of this section, ‘‘not in use’’
means that there is either no crew or
equipment in the vicinity of the switch
or there is a crew in the vicinity of the
switch but the crew has no intention of
using the switch. FRA has also added
the phrase ‘‘after operating a switch’’ to
clarify that the requirement in
paragraph (b)(8) does not apply to an
employee who is merely verifying the
position of a hand-operated switch, as
opposed to actually operating the
position of such a switch.
Proposed paragraph (d) has been
redesignated as paragraph (c). This
paragraph requires that when rolling
and on-track maintenance-of-way
equipment has entered a track,
approaching a hand-operated switch not
lined for its intended movement, it shall
not foul a track (see definition of ‘‘foul
or fouling a track’’ in this subpart) until
the switch is properly lined for the
intended movement. If the switch is
intended to be trailed through, such as
with a spring switch, or a yard type
switch commonly referred to as a
‘‘rubber switch,’’ a ‘‘run-through
switch,’’ or a ‘‘variable switch,’’
movement shall not trail through the
switch until the route is seen to be clear
or the equipment has been granted
movement authority by the employee in
charge of that track segment or switch.
Additionally, if a train, rolling
equipment or on-track maintenance-of-
way equipment is closely approaching a
switch and an employee observes a
conflicting movement also closely
approaching the switch, the track with
the approaching conflicting movement
shall not be fouled.
Proposed paragraph (e) has been
redesignated as paragraph (d). Paragraph
(d) specifies that when rolling and on-
track maintenance-of-way equipment
has entered a track, it is required that
the hand-operated switch to that track
shall not be lined away from the track
until that equipment has passed the
‘‘clearance point’’ (as defined in this
subpart) of that track. If complied with,
this requirement will prevent an
employee from operating a switch while
equipment is fouling it, directly on it, or
in close proximity to it. The purpose of
this requirement is to prevent injuries
and accidents caused by improper
operation of switches. Injuries should be
reduced by this requirement because
when switches are operated with
equipment fouling a switch, or directly
on a switch, a switch can be hard to
operate or may be put under tension
such that when an employee begins to
operate the switch handle, it may move
unexpectedly; thus, back injuries and
other muscle strains may be reduced. In
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addition, accidents may be reduced as
employees will not be allowed to
operate switches under tension, i.e.,
when cars are on a switch.
Section 218.105 Additional
Operational Requirements for Hand-
Operated Main Track Switches
As explained in the section-by-section
analysis to § 218.103, FRA has divided
proposed § 218.103 into several sections
so that the requirements will be easier
to follow and be in a more logical order.
The requirements found in this section
were derived from proposed § 218.103.
The requirement proposed in
paragraph (a) has been revised, but the
reasons behind the requirement remains
the same. The reasons behind this
paragraph are to ensure that (1) each
railroad adopt and comply with an
operating rule which complies with the
requirements of this section; and (2)
when any person including, but not
limited to, each railroad, railroad
officer, supervisor, and employee
violates any requirement of an operating
rule which complies with the
requirements of this section, that person
be considered to have violated the
requirements of this section. The NPRM
was not intended to mean, but could
possibly have read, that each person
was only to uphold and comply with
the railroad’s operating rule and not the
regulation itself. The purpose for
requiring that each railroad, railroad
officer, supervisor, and employee shall
be considered in violation of this
section when a railroad operating rule
that complies with this section is
violated is so that FRA has the authority
to enforce this regulation as opposed to
merely requiring that each railroad
maintain and have in effect such a rule.
Proposed § 218.103(c)(1) titled ‘‘Hand-
operated Main Track Switches’’ has
been redesignated as § 218.105(b) and
retitled ‘‘Designating switch position,’’
but has otherwise remained unchanged.
This paragraph provides regulatory
authority over the hand-operated main
track switches so that FRA regulates the
positioning of all such switches. In
contrast, FRA only prescribes
requirements for hand-operated main
track switches in non-signaled territory
in EO 24.
The rule specifies that each railroad
will retain discretion regarding the
normal position of a hand-operated
main track switch. Generally, railroad
operating rules pertaining to the
operation of switches provide that the
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normal position for a main track switch
is lined and locked for movement on the
main track when not in use. The
purpose of this rule is so that trains
traveling on main track will not be
VerDate Aug<31>2005 18:18 Feb 12, 2008 Jkt 214001
inadvertently diverted onto another
track. (Of course, this can be avoided if
all trains were required to approach all
main track switches prepared to stop,
but that requirement would impose a
substantial burden on railroads under
most circumstances and would also
introduce other safety concerns.)
Railroads may designate a different
position as normal, as some operations
may be more efficient with a hand-
operated main track switch’s ‘‘normal’’
position designated in what would
otherwise be referred to as the ‘‘reverse’’
position. No matter what position a
railroad designates as the normal
position of each hand-operated main
track switch, the requirement is for such
designations to be made in writing. The
railroad may designate the normal
position of the switch in its operating
rules, system special instructions,
timetables, general orders, or any other
written documentation that will provide
adequate notice to employees operating
and verifying hand-operated main track
switches.
FRA is unaware of any railroads that
do not require locking of main track
switches as a safeguard against
unauthorized use. Paragraph (b) requires
that employees operating and verifying
hand-operated main track switches
should pay careful attention to ensure
that these switches, when not in use, are
lined and locked in that position except
under two circumstances. The first
circumstance under which the
employee does not need to return the
switch to the designated normal
position occurs when the train
dispatcher directs otherwise; thus, the
train dispatcher, with movement control
over that main track segment, directs the
crew using the switch to leave the
switch in other than the normal
position. The dispatcher would then be
responsible for the switch and must
follow railroad operating procedures for
the necessary protection of the switch.
Such ‘‘necessary protection’’ entails that
the dispatcher take steps to ensure that
the next train crew approaching the
switch has a track warrant informing
that the switch has been left reversed. In
some instances, the dispatcher will need
to make a note in a log of train
movements, or other similar document,
to ensure that subsequent dispatchers
have access to the reversed switch
information. The second circumstance
under which the employee does not
need to return the switch to the
designated normal position occurs when
the switch is left in the charge of a
crewmember of another train, a
switchtender, or a roadway worker in
charge. Paragraph (b)(2) should be an
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8485
alternative safe procedure because these
other employees will likewise be
individually responsible for the safe and
proper operation of that hand-operated
main track switch; the employees
performing these jobs shall be qualified
on operating switches and verifying
switch position according to this
subpart, so there should be no inherent
problems with the transfer of
responsibility for the switch. Regardless
of the position of the switch when the
train dispatcher directs otherwise or the
switch is left in the charge of another
qualified employee, it must still be
locked, hooked or latched, if so
equipped, when not in use, as required
by § 218.103(b)(8).
Just in case there is any confusion that
the operation of a hand-operated main
track switch is a function requiring job
briefings, paragraph (c), formerly
proposed § 218.103(i)(3), sets forth the
requirements for such briefings where
employees should be engaging in
meaningful communication. Thus, in
paragraph (c)(1), FRA specifically
requires that before a train leaves the
location where any hand-operated main
track switch was operated, all
crewmembers shall have verbal
communication to confirm the position
of the switch. Similarly, paragraph (c)(2)
addresses that communication amongst
employees is vital when roadway
workers are working within the same
work limits and operate hand-operated
main track switches. Thus, when any
roadway work group is working under
the protections of the specified form of
working limits, any employee who
operates a hand-operated main track
switch within such limits shall do so
under the direction of the roadway
worker in charge. Further, it is required
that the employee operating the hand-
operated main track switch shall report
to the roadway worker in charge the
position of all hand-operated main track
switches the employee has operated to
the roadway worker in charge prior to
the expiration of the authority limits.
In some roadway work group
situations, a roadway worker may be
instructed during a job briefing to
convey switch position information to
an employee who is not the roadway
worker in charge. In this alternative
situation, the contact person is acting as
an intermediary between the employee
operating the switch and the roadway
worker in charge. This intermediary
person is commonly referred to as an
‘‘employee in charge.’’ The rule permits
the employee in charge to pass on the
switch position information from the
employee operating the switch to the
roadway worker in charge without
firsthand verification of the switch
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 8486 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations
position. The important aspect of this
requirement is that the work group
members are communicating the switch
position and not who conveys the
information. The allowance of this
option reflects the reality of current
operations.
A recurring concern raised by the
labor organizations was that some
railroads permit a maintenance-of-way
employee to operate a hand-operated
main track switch in non-signaled
territory, typically for purposes of
servicing the switch, without contacting
the dispatcher or the crewmembers of
any potentially on-coming trains. The
concerns regarding this practice
centered on whether appropriate
protection was being afforded to on-
coming trains that potentially could be
diverted from the main track if the
employee servicing the switch was
unable to restore the switch to the
normal position prior to the train’s
arrival. BMWED questioned whether it
made sense to require strict
communication requirements to verify
the position of switches prior to the
expiration of exclusive track occupancy
authority but not require any
communication under this other
circumstance. FRA views these
situations as completely different as the
former applies to job briefings among a
roadway worker group, not a
communication with a dispatcher or
control operator as BMWED is arguing
for in the latter. BMWED was also
concerned with the liability the rule
would have for the employee who failed
to restore a switch being serviced if a
train came along. With regard to the
liability issue, FRA has not added any
regulatory requirement for such an
employee servicing a switch and thus
the employee’s liability is unaffected by
this rule.
FRA’s decision not to require an
employee servicing a switch to
communicate with the dispatcher or
control operator is based on several
factors. One of the biggest factors is that
FRA learned of this practice through
discussions with the RSAC working
group but could not find any data to
support that this practice has been a
problem or cause of accidents/incidents.
It is FRA’s understanding that this is a
practice mainly on the western railroads
where employees can often see on-
coming trains great distances away. In
the situations where employees may not
be able to easily view an on-coming
train, it is a common practice for a
pwalker on PROD1PC71 with RULES3
maintenance-of-way employee to
contact a dispatcher or control operator
in order to obtain a sense of when the
next train is likely to come along. An
employee working under such
VerDate Aug<31>2005 18:18 Feb 12, 2008 Jkt 214001
conditions would likely maintain a high
level of situational awareness to on-
coming trains as the employee
understands that he or she is providing
his or her own protection, and the
information obtained is not always
accurate. FRA is concerned with
promulgating a requirement that the
employee contact the dispatcher or
control operator in every instance as the
formality of making that communication
mandatory could lead maintenance-of-
way employees to develop a false sense
of safety when true block protection is
not being provided.
Unless a switch is broken, it should
take seconds, not minutes, to operate a
switch back to normal if a train is
known to be approaching. FRA assumes
that a maintenance-of-way employee
who realizes that a switch is broken, as
opposed to needing some oil or routine
maintenance, would immediately
contact a dispatcher or control operator
in order to obtain the authority to set up
working limits or other adequate
protection that would allow the
employee the time to repair the switch.
Certainly, FRA would not expect
railroads to permit the servicing of a
switch when heavy train traffic is
expected. FRA would also expect
railroads to coordinate such work when
train schedules are available and
adequate time for such service can be
planned. Although FRA is not
implementing any regulations on this
issue, we recommend that railroads
implement procedures to safeguard
employees and trains when a switch
requires servicing.
Proposed § 218.103(c)(2) has been
redesignated as § 218.105(d). This
paragraph requires that in non-signaled
territory, before an employee releases
the limits of a main track authority and
a hand-operated switch is used to clear
the main track, and, prior to departing
the switch’s location, certain conditions
be met. An employee is prohibited from
releasing the limits after departing the
switch’s location so that the employee
who has any question about the
condition of the switch has access to
verifying its condition. This
requirement is intended to prevent an
employee from releasing the limits
while located in the yard office or while
traveling away from the switch’s
location in a taxi.
In paragraph (d)(1), the first proposed
condition that must be met is that the
employee releasing the limits, after
conducting a job briefing in accordance
with this subpart, must report to the
train dispatcher that the hand-operated
main track switch has been restored to
its normal position and locked, unless
the train dispatcher directs that the
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hand-operated main track switch be left
lined and locked in the reverse position.
The reference to another paragraph in
this section is intended to remind the
employee releasing the limits that before
a train, train crew, or maintenance-of-
way employee leaves the location where
any hand-operated main track switch
was operated, all crewmembers and
maintenance-of-way employees shall
have a verbal communication to confirm
the position of the switch. Soon after
this job briefing, it is time to call the
dispatcher and confirm the same
information that should have been
included in the train crew or
maintenance-of-way employees’ job
briefing. If the train dispatcher wants
the employee to leave the switch in the
reverse position, this communication is
the train dispatcher’s opportunity to
inform the employee of such a request.
It is required that the employee and
dispatcher confirm with each other the
switch position and that the switch is
locked so that there is little chance that
any trespasser with a key or bolt cutters
could tamper with the switch. As in
paragraph (b)(1), a train dispatcher who
directs that the switch be left in the
reverse position must provide the
protection necessary to ensure that the
subsequent train crew or operator of on-
track equipment that will approach the
switch has a track warrant informing
them of the switch’s reverse position.
Again, such ‘‘necessary protection’’
entails that the dispatcher take steps to
ensure that the next train crew or
operator of on-track equipment
approaching the switch has a track
warrant informing that the switch has
been left reversed. In some instances,
the dispatcher will need to make a note
in a log of train movements or other
similar document to ensure that
subsequent dispatchers have access to
the reversed switch information.
Paragraphs (d)(2) and (3) detail two
more conditions that must be met when
main track authority limits are being
prepared for release. The second
condition is that if the employee’s
report of the switch position is correct,
i.e., matches the operating rule or
dispatcher’s direction, the train
dispatcher shall repeat the reported
switch position information to the
employee releasing the limits and ask
whether the repeated information is
correct. Typically, railroad procedures
require the train dispatcher to ask
whether ‘‘that is correct’’ with regard to
confirming this type of information, so
the regulation is intended to reflect
those commonly used procedures. The
third condition is that the employee
releasing the limits then confirm that
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this information is correct with the train
dispatcher. Railroads and employees
who currently release such limits
should recognize that these
requirements follow the traditional rules
of such release. The purpose of the
dispatcher and employee repeating the
switch’s condition is so that both
employees can confirm that the other is
repeating the correct information
regarding the position of the switch and
that it is locked.
The rule retains the requirement in
EO 24 that an employee releasing the
limits of a main track authority in non-
signaled territory communicate with the
train dispatcher that all hand-operated
main track switches operated have been
restored to their normal position, unless
the train dispatcher directs otherwise,
but only to the extent that the switches
are at the location where the limits are
being released. With the elimination of
a SPAF, it would be difficult for an
employee to recall the condition of any
particular hand-operated main track
switch operated and there would likely
be a reaction for an employee to believe
he or she left all such switches in proper
position—without much opportunity to
double-check the condition of those
faraway switches at that time. As
mentioned previously, accidents often
occur where the limits are being
released and that is why the rule has
placed emphasis on addressing the
problem at those locations. The
switches located at the point of release
of the limits should be readily
accessible for any employee who is
unsure of the condition the switch was
last left in. The rule also adds the
requirement that the employee report
that the switch has been locked; locking
of the main track switch should prevent
easy access to unauthorized users.
The requirements in paragraph (d)
carry over certain employee/dispatcher
communication requirements from EO
24 that provide additional checks to
ensure that hand-operated main track
switches are left properly lined and
locked. The requirement is carefully
tailored to address the switches at the
location being released because FRA has
determined that many of the accidents
are occurring at that location. As several
comments were received in response to
EO 24 regarding an equivalent
requirement carried over in paragraph
(d), it should be helpful to describe
what FRA means by the term ‘‘releasing
pwalker on PROD1PC71 with RULES3
the limits of a main track authority.’’
The term means releasing all or a
portion of the limits (i.e., rolling up the
limits) of an existing main track
authority.
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Section 218.107 Additional
Operational Requirements for Hand-
Operated Crossover Switches
As explained in the section-by-section
analysis to § 218.103, FRA has broken
up proposed § 218.103 into several
sections so that the requirements will be
easier to follow and be in a more logical
order. The requirements found in this
section were derived from proposed
§ 218.103.
The requirement proposed in
paragraph (a) has been revised, but the
reasons behind the requirement remain
the same. The reasons behind this
paragraph are to ensure that (1) each
railroad adopt and comply with an
operating rule which complies with the
requirements of this section; and (2)
when any person including, but not
limited to, each railroad, railroad
officer, supervisor, and employee
violates any requirement of an operating
rule which complies with the
requirements of this section, that person
be considered to have violated the
requirements of this section. The NPRM
was not intended to mean, but could
possibly have read, that each person
was only to uphold and comply with
the railroad’s operating rule and not the
regulation itself. The purpose for
requiring that each railroad, railroad
officer, supervisor, and employee shall
be considered in violation of this
section when a railroad operating rule
that complies with this section is
violated is so that FRA has the authority
to enforce this regulation as opposed to
merely requiring that each railroad
maintain and have in effect such a rule.
Paragraph (b) was formerly proposed
§ 218.103(g)(1). This paragraph sets
forth the general rule that both hand-
operated switches of a crossover shall be
properly lined before equipment begins
a crossover movement. Properly lined
means that switches at both ends of the
crossover are lined for the crossover
movement. As train crews expect
crossover switches to be properly lined,
i.e., in correspondence (see definition of
‘‘correspondence of crossover
switches’’), an accident can easily occur
when crossover switches are out of
correspondence. A related concern that
is addressed by this paragraph is what
to do when equipment is traversing a
crossover; the rule requires that all
equipment be clear of both ends of the
crossover before restoring the switches
to the normal position. If employees
apply a railroad operating rule that
incorporates this rule, the requirement
should prevent the unintentional
running through of crossover switches
or unintentional movements onto
PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
8487
another track that could potentially
strike other rolling equipment.
Paragraph (c) was formerly proposed
§ 218.103(g)(2). This paragraph
identifies four exceptions to the general
rule that hand-operated crossover
switches should be in correspondence.
The reason for the exceptions is that
each operation is safe or safer with the
crossover switches out of
correspondence than in correspondence.
That is, each exception identifies a
situation in which employees on the
track are protected by diverting trains
and equipment without slowing down
operations.
FRA is aware that some
configurations of crossover switches are
quite complicated, typically due to the
location of adjacent or adjoining tracks
and other attendant switches. Railroads
should address these complicated
configurations of crossover switches
when employees are instructed on the
physical characteristics of the territory.
Without proper instruction on how to
apply a railroad’s operating rule for
correspondence of crossover switches, it
will be difficult to hold employees
accountable. However, railroads can be
held accountable if employees do not
properly apply such an operating rule
and lack of instruction is one of the
causes. Of course, if a railroad provided
instruction but a violation was
committed due to the complexities of
the crossover configuration, FRA will
exercise discretion regarding whether
any enforcement action is necessary.
Paragraph (c)(1)(i) was formerly
proposed § 218.103(g)(2)(i)(A). This
paragraph permits mechanical
department workers to line one end of
a crossover away from the track under
blue signal protection to allow workers
on, under, or between rolling
equipment. See 49 CFR 218.27.
Similarly, paragraph (c)(1)(ii), formerly
proposed § 218.103(g)(2)(i)(B), permits
providing track protection for roadway
workers on track that is considered
‘‘inaccessible’’ under § 214.327 of this
chapter. Paragraph (c)(1)(iii), formerly
proposed § 218.103(g)(2)(i)(C), permits
those railroads that have the technology,
in traffic control system (TCS) territory
to allow a signal maintainer to perform
maintenance, testing or inspection of
the switch at only one end of a
crossover while continuing to operate
trains over the other crossover switch.
FRA does not have any evidence to
suggest this exception is an unsafe
practice. Finally, the fourth exception,
found in paragraph (c)(1)(iv), which was
formerly proposed at the end of
proposed paragraph (g)(1), recognizes
that a safe operation is probable during
continuous switching operations where
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only one crew is using both tracks
connected by the crossover.
FRA has eliminated the stated
requirement in proposed
§ 218.103(g)(2)(ii) that crossover
switches shall be immediately restored
to correspondence after the protection
afforded by one of the four exceptions
in paragraph (c) is no longer required.
After further consideration, FRA
concluded that this requirement is
implicit and it would be redundant to
state it. If one of the paragraph (c)
exceptions no longer applies, the
general rule in paragraph (b) must be
complied with—meaning that both
hand-operated switches of a crossover
shall be properly lined before rolling
and on-track maintenance-of-way
equipment begins a crossover
movement.
Section 218.109 Hand-Operated Fixed
Derails
As explained in the section-by-section
analysis to § 218.103, FRA has broken
up proposed § 218.103 into several
sections so that the requirements will be
easier to follow and be in a more logical
order. The requirements found in this
section were derived from proposed
§ 218.103.
FRA has also clarified in the title to
this subpart, the purpose and scope
section, and in § 218.109, that this
subpart applies to ‘‘fixed’’ derails. In the
NPRM, FRA did not distinguish
between the two general types of
derails, i.e., fixed and portable. FRA is
using the term ‘‘fixed derails’’ to
contrast it with derails that are portable.
Portable, or temporary, derails can
easily be transported and applied at
different locations throughout the day in
order to protect workers and equipment
as needed. Fixed, or permanent, derails
cannot be easily transported because
they are typically affixed to the track
structure in some manner. Fixed derails
are normally found prior to entering a
locomotive servicing area or car shop
repair area, where they are used to
protect workers in those areas from
encroachment by unauthorized
movements of rolling equipment, and
on most industry tracks at or near the
switch connecting with the main track.
By clarifying that this subpart and
section applies to fixed derails, FRA is
providing up front notification that this
subpart does not apply to the operation
of portable derails.
During the nearly four and a half year
period from January 2003 through May
pwalker on PROD1PC71 with RULES3
2007, 154 accidents/incidents were
reported by railroads to have been
caused, either primarily or secondarily,
by a person’s failure to apply or remove
a derail. Only 3 of these 154 accidents
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were reported as caused by a failure to
apply or remove a portable derail and
thus 98% of the reportable accidents/
incidents were caused by the
misapplication of the railroad’s
operating rules for fixed derails. As the
primary reason for issuing this rule is to
reduce accidents/incidents attributed to
human factor causes, this rule’s focus on
reducing accidents/incidents attributed
to mishandling fixed derails is
appropriately targeted.
The requirement proposed in
paragraph (a)(1) has been revised, but
the reasons behind the requirement
remains the same. The reasons behind
this paragraph are to ensure that (1)
each railroad adopt and comply with an
operating rule which complies with the
requirements of this section; and (2)
when any person including, but not
limited to, each railroad, railroad
officer, supervisor, and employee
violates any requirement of an operating
rule which complies with the
requirements of this section, that person
be considered to have violated the
requirements of this section. The NPRM
was not intended to mean, but could
possibly have read, that each person
was only to uphold and comply with
the railroad’s operating rule and not the
regulation itself. The purpose for
requiring that each railroad, railroad
officer, supervisor, and employee shall
be considered in violation of this
section when a railroad operating rule
that complies with this section is
violated is so that FRA has the authority
to enforce this regulation as opposed to
merely requiring that each railroad
maintain and have in effect such a rule.
Paragraph (a)(2) carries over the
proposed requirement from § 218.103
that each railroad specify minimum
requirements for an adequate job
briefing concerning hand-operated fixed
derails. The requirement is for each
railroad to have its own rules and
procedures governing the minimum
requirements for a satisfactory job
briefing, which to FRA’s knowledge,
nearly all railroads already do. It is
essential that employees working
together know exactly what each
person’s role is in the operation, what
the methods of operation and protection
will be, and the order in which
segments of the job are to be
accomplished. With such knowledge,
one employee could recognize the
mistakes of another and correct them
before any operating rule violation or
serious accident occurred.
Paragraph (b) derives from proposed
§ 218.103(h). This paragraph sets forth
the general rules for hand-operated
fixed derails. Paragraph (b)(1) requires
that the normal position of fixed derails
PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
is in the derailing position; but, a
railroad may specify in its operating
rules or special instructions that the
normal position of a fixed derail is in
the non-derailing position. Paragraph
(b)(2) requires that fixed derails shall be
kept in the derailing position whether or
not any rolling or on-track maintenance-
of-way equipment is on the tracks they
protect, except as provided in paragraph
(b)(1) or when changed to permit
movement. Thus, the general rule
requires that the fixed derails be
returned to the derailing position once
the movement is complete while the
rule still allows for the flexibility of a
railroad to designate otherwise or an
exception in paragraph (b)(1) to apply in
less common circumstances. If fixed
derails are being used for protection of
workers using blue signals, these rules
would not be applicable as FRA already
has other regulations governing derails
in that circumstance. See 49 CFR part
218, subpart B.
The entire purpose of a derail,
whether fixed or portable, is to protect
something or someone. Derails are
typically used to prevent equipment
from rolling out onto main tracks in
front of trains. They are also used to
protect workers who are on a track to
repair track or equipment. Derails may
be placed in addition to warnings
provided by signs, flags, gates, and
notices in timetables and special
instructions; thus, derails protect
employees when other employees
operating equipment or a train fail to
heed these other warnings, or
unattended equipment rolls freely.
Although a properly applied derail that
stops equipment or a train has served its
purpose, FRA prohibits movements over
a fixed derail in the derailing position
under paragraph (b)(3). Paragraph (b)(3)
will permit FRA to take enforcement
action when a railroad or person causes
a movement to be made over a derail in
the derailing position. As the typical
situation involving movement over a
derail occurs at low speeds and does not
result in serious injuries or excessive
damage to railroad property, the
industry has accepted, in FRA’s view,
too much tolerance for this type of
incident. Consequently, while FRA
plans to use its enforcement discretion,
the purpose of this requirement is to
reverse the permissive culture of the
railroad industry that has accepted
operating over a derail.
Paragraph (c) derives from
§ 218.103(b) and (h)(3). This paragraph
addresses the same type of list of
requirements that FRA is requiring for
hand-operated switches, but applies
them to hand-operated fixed derails. For
instance, paragraph (c)(1) requires that
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employees operating or verifying the
position of a fixed derail shall conduct
job briefings before work is begun, each
time a work plan is changed, and at
completion of the work. It is essential
that employees performing these tasks
communicate with one another at key
intervals to prevent error free operations
over derails. Paragraph (c)(2) requires
that employees operating or verifying
the position of a fixed derail shall be
qualified on the railroad’s operating
rules relating to the operation of the
derail. In FRA’s view, it seems intuitive
that a railroad cannot expect an
employee to know how to properly
operate or verify the position of a hand-
operated fixed derail without qualifying
the employee. Once qualified, an
employee will be held individually
responsible for the position of the derail
in use; for the purpose of paragraphs
(c)(3) and (c)(6), a fixed derail is
considered ‘‘in use’’ if a movement is
either operating over the derail, or
continuously or intermittently operating
over the derail while it is in the non-
derailing position. Paragraph (c)(6)
addresses that employees operating or
verifying the position of a fixed derail
shall ensure that when not in use,
derails are locked, hooked, or latched in
the normal position if so equipped. As
FRA mentioned in the analysis to
§ 218.103, FRA’s rule does not require
switch or derail targets, latches, locks or
hooks; however, if a switch or derail is
equipped with any of these devices,
FRA requires that the employees check
that these devices are properly placed or
correspond as intended. If the derail is
so equipped, it shall be locked in the
normal position regardless of whether
the normal position is designated by the
railroad as in the derailing position or
non-derailing position.
Appendix D to Part 218—Requirements
and Considerations for Implementing
Technology Aided Point Protection
In the preamble to the NPRM, FRA
restated its policy on using technology,
such as cameras and monitors, to assist
crews in providing point protection
during shoving or pushing movements.
The NPRM was the first proposed
regulatory provision on this subject,
and, in addition to the preamble
discussion, the issue was also directly
raised by proposed § 218.99(b)(2)(i).
FRA received some comments on this
policy and it was discussed with the
RSAC working group. Generally
speaking, the railroads wanted to
pwalker on PROD1PC71 with RULES3
continue using such technology without
seeing any need for further regulation;
meanwhile, the labor organizations were
concerned that without adequate
safeguards, i.e., regulations, the use of
VerDate Aug<31>2005 18:18 Feb 12, 2008 Jkt 214001
such technology posed too many
questions related to adequate
functionality and reliability. After
further consideration, FRA has
concluded that implementing the policy
as mandatory requirements is necessary
to assure Federal, State and local
governments, that adequate safeguards
are in place to protect the general
public.
The first section of appendix D
addresses the general requirements and
considerations for all point protection
aided by technology. One of the big
concerns with not having a qualified
employee protecting the point is
determining that the technology, and
the procedures for its use, provide an
equivalent level of protection to that of
a direct visual determination by a
crewmember or other qualified
employee properly positioned to make
the observation. To do that, a person
must be properly qualified. FRA has
addressed the qualifications issue by
carrying over from the proposed rule, in
§ 218.95(a)(2), the requirement that each
railroad must qualify employees ‘‘in any
technology (and related procedures)
necessary to accomplish work subject to
the particular requirements, actions
required by the employee to enable and
use the system, means to detect
malfunctioning of equipment or
deviations from proper procedures,
actions to be taken when malfunctions
or deviations are detected, and
information needed to prevent
unintentional interference with the
proper functioning of such technology.’’
In summary, the rule requires
employees to be qualified on proper use
of the technology and what to do when
the technology does not work as
intended. Most malfunctions of the
technology should be detectable, and
result in abandoning the use of the
technology for determining point
protection until the malfunction can be
corrected.
Although each railroad will retain
some flexibility in implementing
technological aids to provide point
protection, the stated requirements and
considerations will provide FRA with
the ability to more quickly and directly
enforce a change if a railroad attempts
to implement a setup that does not
adequately address all of the factual
circumstances noted for consideration.
For instance, a railroad shall not permit
a camera/monitor setup that utilizes a
black and white monitor that does not
allow the person viewing the monitor to
adequately determine a signal
indication for the shoving or pushing
movement. Similarly, FRA could take
enforcement action against a railroad or
individual for using a camera/monitor
PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
8489
setup during severe weather conditions
that did not permit adequate camera
views of whether a crossing’s gates were
down or the track is, in fact, clear of
equipment. Another consideration
before implementing technology aided
point protection is who will be allowed
to view the monitor and assist the crew;
thus, FRA will consider enforcement
action if employees do not conduct
adequate job briefings or maintain
adequate lines of communication
between the employee controlling the
movement and the employee viewing
the monitor.
It is also worth mentioning that each
railroad shall ensure that the technology
provides ‘‘real time coverage,’’ i.e., a
view without any delay that could
impact the safety of the operation and
provide less protection than that of a
direct visual determination. With that
regard, we are concerned with internet
or web-based monitoring systems that
do not provide a direct feed to the
monitor and could potentially be
delayed by routing through a third party
server or other internet portal. Although
FRA is not prohibiting such web-based
monitoring systems, additional
safeguards would need to be employed
in order to ensure that real time
coverage can be obtained and the setup
relied upon.
The second section of appendix D
specifies additional requirements for the
scenario in which remote control
locomotive operations will be using
technology aided point protection at
highway-rail grade crossings, pedestrian
crossings, and yard access crossings. All
of the general requirements and
considerations of the first section are
also applicable to these remote control
operations over grade crossings except
that there should be less of a chance of
a communication problem as FRA is
instituting a new requirement that the
remote control operator controlling the
movement shall be the only person
permitted to view the monitor during
such operations. As the appendix
explains, the purpose of this new
requirement is to protect the general
public, which is at greater risk of being
struck by equipment at the crossings
specified than employees qualified to
operate in a yard environment. If the
remote control operator controlling the
movement is viewing the monitor, that
operator should be able to react more
quickly if a vehicle or pedestrian enters
the crossing being viewed than if the
information first had to be relayed by
another person. Shaving a few precious
seconds off the reaction time by
eliminating the need for the relaying of
information may be enough to mitigate
the severity of an accident. FRA realizes
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that the few railroads using this
technology prior to implementation of
this rule will each likely need to amend
any relevant operating rules or
procedures. As many of these operations
involve two crewmembers who have the
ability to control the movement,
complying with this requirement should
not be significantly burdensome. In fact,
this requirement may cut down on the
odd practice of having one remote
control operator/crewmember
controlling the movement when a
second, equally capable operator/
crewmember is in the best possible
position to view the equipment ahead of
the movement.
FRA has converted the policy
statement published in the NPRM into
a list of mandatory requirements for
remote control locomotive operations
utilizing camera/monitor setups at the
types of crossings specified. The list has
been altered slightly to rephrase each
item as a mandatory requirement. The
first requirement, to have a Crossing
Diagnostic Team evaluate the crossing,
is arguably the most important. Each
railroad cannot be permitted to setup
remote cameras at crossings for use by
remote control operators without
consulting FRA, and relevant State and
local government officials. All types of
information related to the safety of the
crossing would need evaluation prior to
deciding whether technology could be
used safely at that crossing and
determining exactly what modifications
are necessary to ensure the operation is
safe. Because we are requiring the
expertise of a diagnostic team, FRA is
permitting the diagnostic team to
conclude that some or all of
requirements 2, 4, 5, and 6 do not need
to be complied with when a crossing is
equipped with supplemental safety
devices that prevent motorists from
driving around lowered gates; however,
the diagnostic team cannot waive the
requirement that the remote control
operator controlling the movement be
the person viewing the monitor
(requirement number 3), nor the
requirement that the railroad notify the
Associate Administrator for Safety in
writing when this type of protection has
been installed and activated at a
crossing (requirement number 7). This
latter requirement to contact FRA in
writing has been added to ensure that
FRA grade crossing specialists and
signal inspectors can be made aware of
when these setups have been activated
and, thus, may begin monitoring the
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safety of such operations.
If a railroad implemented a remote
camera setup to be used by a remote
control operation at a highway-rail
grade crossing, pedestrian crossing, or
VerDate Aug<31>2005 18:18 Feb 12, 2008 Jkt 214001
yard access crossing prior to April 14,
2008, i.e., the effective date of this final
rule, the railroad may continue to use
that setup without a new crossing
diagnostic team evaluation as long as a
diagnostic team was previously used to
make the necessary determinations.
However, even if a diagnostic team was
used prior to that date, compliance is
required with the other requirements
unless specified by a diagnostic team.
As FRA explains in its conclusion, we
expect that technology will develop and
improve over time. The use of new
technology is typically driven by
efficiencies achieved, of which safety
may only be one component.
Meanwhile, FRA cannot always keep up
with the latest technologies without
notification and we have a duty to
determine whether a new technology to
aid point protection provides an
equivalent level of protection to that of
a direct visual determination. Thus,
FRA is requiring that railroads wishing
to utilize the latest technologies contact
the Associate Administrator for Safety
in writing prior to implementation.
VI. Regulatory Impact and Notices
A. Executive Order 12866 and DOT
Regulatory Policies and Procedures
This final rule has been evaluated in
accordance with existing policies and
procedures, and determined to be non-
significant under both Executive Order
12866 and DOT policies and procedures
(44 FR 11034; Feb. 26, 1979). FRA has
prepared and placed in the docket a
regulatory evaluation addressing the
economic impact of this final rule.
Document inspection and copying
facilities are available at the Docket
Management Facility: U.S. Department
of Transportation, 1200 New Jersey
Avenue, SE., West Building Ground
Floor, Room W12–140, Washington, DC
20590–0001. Access to the docket may
also be obtained electronically through
the Federal eRulemaking Portal at
http://www.regulations.gov. Photocopies
may also be obtained by submitting a
written request to the FRA Docket Clerk
at Office of Chief Counsel, Stop 10,
Federal Railroad Administration, 1120
Vermont Avenue, NW., Washington, DC
20590; please refer to Docket No. FRA–
2005–23080.
FRA analyzed the foregoing final rule
and found that there will be relatively
little change in the burden upon
railroads, however, the FRA believes
that much greater compliance with rules
which are almost identical to what the
railroads have promulgated as their own
operating rules will likely result in a
reduction in human factor accidents,
especially those human factors causes
PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
most directly targeted by the
rulemaking. FRA believes that most
railroads can achieve average reductions
of 35% in these accidents, because there
is one Class I railroad with better than
average compliance with its own
operating rules which routinely has
human factor accident rates 35% below
the industry average. The costs of the
foregoing are minimal, because most of
the procedures mandated are already
incorporated in the railroads’ own
operating rules. The biggest costs will be
related to publication of changed
language, and management of the
operating rules programs. The rule
would have even less impact on small
entities, as they are excused from most
of the burdens which regulate
management of their operating rules
testing programs. The final rule would
generate twenty-year discounted
benefits of $191,189,965, and twenty-
year discounted costs of $20,756,051,
for a twenty-year discounted net benefit
of $170,433,914, if the assumptions in
this analysis are correct.
B. Regulatory Flexibility Act and
Executive Order 13272
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) and Executive Order
13272 require a review of proposed and
final rules to assess their impact on
small entities. FRA has prepared and
placed in the docket an Analysis of
Impact on Small Entities (AISE) that
assesses the small entity impact of this
final rule. Document inspection and
copying facilities are available at the
Docket Management Facility: U.S.
Department of Transportation, 1200
New Jersey Avenue, SE., West Building
Ground Floor, Room W12–140,
Washington, DC 20590–0001. Access to
the docket may also be obtained
electronically through the Federal
eRulemaking Portal at http://
www.regulations.gov. Photocopies may
also be obtained by submitting a written
request to the FRA Docket Clerk at
Office of Chief Counsel, Stop 10,
Federal Railroad Administration, 1120
Vermont Avenue, NW., Washington, DC
20590; please refer to Docket No. FRA–
2005–23080.
FRA notes that the impact on small
entities have been considered
throughout the development of this final
rule both internally and through
consultation within the RSAC forum, as
described in Section II of this preamble.
After the Railroad Operating Rules
Working Group failed to reach a
consensus recommendation, FRA
reported the Working Group’s unofficial
areas of agreement and disagreement to
the RSAC.
13FER3
 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 8491

The AISE developed in connection
with this final rule concludes that this
proposal would not have a significant
economic impact on a substantial
number of small entities. Thus, FRA
certifies that this final rule is not
expected to have a significant economic
impact on a substantial number of small
entities under the Regulatory Flexibility
Act or Executive Order 13272.
C. Paperwork Reduction Act
The information collection
requirements in this final rule have been
submitted for approval to the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act of 1995,
44 U.S.C. 3501 et seq. The sections that
contain the new information collection
requirements and the estimated time to
fulfill each requirement are as follows:

Average time per Total annual Total annual bur-

CFR Section—49 CFR Respondent universe Total annual responses response burden hours den cost

217.7—Operating Rules;
Filing and Record-
keeping:
—Filing rules, time- 1 New Railroad ............. 1 submission ................. 1 hour ............................ 1 $43
tables, and spe-
cial instructions.
—Amendments to 55 Railroads .................. 165 amendments .......... 20 minutes .................... 55 2,365
operating rules,
timetables, and
timetable special
instructions by
Class I, Class II,
Amtrak, and
Commuter Rail-
roads.
—Class III and 20 New Railroads ......... 20 submissions ............. 55 minutes .................... 18 774
Other Railroads:
Copy of Current
Operating Rules,
Timetables, and
Special Instruc-
tions.
—Class III Rail- 632 Railroads ................ 1,896 amendment ......... 15 minutes .................... 474 20,382
roads: Amend-
ments to oper-
ating rules.
217.9—Program of
Operational Tests:
—Railroad and rail- 687 Railroads ................ 4,732 training sessions 8 hours .......................... 37,856 1,892,800
road officer test-
ing responsibil-
ities: Field Train-
ing.
—Written records of 687 Railroads ................ 4,732 records ................ 2 minutes ...................... 158 10

officer testing
qualifications.
—Written program 20 New Railroads ......... 20 programs .................. 9.92 hours ..................... 198 8,514
of operational
tests/inspections.
—Amendments to 55 Railroads .................. 165 amendments .......... 1.92 hours ..................... 317 13,631
operational tests/
insp. programs.
—Records of indi- 687 Railroads ................ 9,180,000 rcds .............. 5 minutes ...................... 765,000 38,250,000
vidual tests/in-
spections.
—Review of tests/ 687 Railroads ................ 37 reviews ..................... 1 hour ............................ 37 10

inspections/ad-
justments to the
program of oper-
ational tests—
Quarterly reviews.
—Officer designa- 687 Railroads ................ 37 designations + 74 re- 5 seconds + 1 hour ....... 74 10

tions & Six Month views.

reviews.
—Passenger Rail- 20 Railroads .................. 20 designations + 34 re- 5 seconds + 1 hour ....... 34 10

roads: Officer views.

designations &
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Six-Month re-
views.
—Records reten- 687 Railroads ................ 589 review rcds ............ 1 minute ........................ 10 10

tion: Periodic re-

views.

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 8492 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations

Average time per Total annual Total annual bur-

CFR Section—49 CFR Respondent universe Total annual responses response burden hours den cost

—Annual summary 37 Railroads .................. 37 summary rcds .......... 61 minutes .................... 38 1,634
on operational
tests/inspections.
217.11—Program of In-
struction on Operating
Rules:
—Railroads instruc- 687 Railroads ................ 130,000 instr. employ- 8 hours .......................... 1,040,000 52,000,000
tion of employees. ees.
—Current copy of 20 New Railroads ......... 20 programs .................. 8 hours .......................... 160 6,880
employee peri-
odic instruction
prog.
—Amendments to 687 Railroads ................ 220 amendments .......... .92 hour ......................... 202 8,686
current employee
instruction prog.
218.95—Instruction,
Training, and Exam-
ination:
—Records of in- 687 Railroads ................ 98,000 empl. rcds ......... 5 minutes ...................... 8,167 351,181
struction, training,
examination.
—FRA disapproval 687 Railroads ................ 50 submissions ............. 1 hour ............................ 50 2,150
of program: Rail-
road responses.
—Amended pro- 687 Railroads ................ 20 amended docs ......... 30 minutes .................... 10 730
grams.
218.97—Good Faith 687 Railroads ................ 687 procedures ............. 2 hours .......................... 1,374 10

Challenge Procedures.
—Copies to em- 687 Railroads ................ 130,000 copies ............. 6 minutes ...................... 13,000 10

ployees of good
faith procedures.
—Copies of amend- 687 Railroads ................ 130,000 copies ............. 3 minutes ...................... 6,500 10

ments to good
faith procedures.
—Good faith chal- 98,000 Employees ........ 15 challenges ................ 10 minutes .................... 3 10

lenges to railroad
directives.
—Resolution of 687 Railroads ................ 15 responses ................ 5 minutes ...................... 1 10

challenges.
—Direct order to 687 Railroads ................ 5 reviews ....................... 15 minutes .................... 1 10

proceed proce-
dures: Immediate
review by railroad
testing officer/em-
ployer.
—Documentation of 687 Railroads ................ 10 protest docs ............. 15 minutes .................... 3 10

employee pro-
tests to direct
order.
—Copies of protest 687 Railroads ................ 20 copies ...................... 1 minute ........................ .33 10

documentation.
—Further review by 687 Railroads ................ 3 reviews ....................... 15 minutes .................... 1 10

designated rail-
road officer.
—Employee re- 687 Railroads ................ 10 written decisions ...... 10 minutes .................... 2 88
quested written
verification deci-
sions.
—Recordkeeping/ 687 Railroads ................ 760 copies .................... 5 minutes ...................... 63 2,709
Retention—Cop-
ies of written pro-
cedures.
—Copies of good 687 Railroads ................ 20 copies ...................... 5 minutes ...................... 2 86
faith challenge
verification deci-
sions.
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218.97—Good Faith 687 Railroads ................ 687 procedures ............. 2 hours .......................... 1,374 10

Challenge Procedures
—Copies to em- 687 Railroads ................ 130,000 copies ............. 6 minutes ...................... 13,000 10

ployees of good
faith procedures.

VerDate Aug<31>2005 18:18 Feb 12, 2008 Jkt 214001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM 13FER3
 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 8493

Average time per Total annual Total annual bur-

CFR Section—49 CFR Respondent universe Total annual responses response burden hours den cost

—Copies of amend- 687 Railroads ................ 130,000 copies ............. 3 minutes ...................... 6,500 10

ments to good
faith procedures.
—Good faith chal- 98,000 Employees ........ 15 challenges ................ 10 minutes .................... 3 10

lenges to railroad
directives.
—Resolution of 687 Railroads ................ 15 responses ................ 5 minutes ...................... 1 10

challenges.
—Direct order to 687 Railroads ................ 5 reviews ....................... 15 minutes .................... 1 10

proceed proce-
dures: Immediate
review by railroad
testing officer/em-
ployer.
218.99—Shoving or
Pushing Movements:
—Required oper- 687 Railroads ................ 687 rule modific ............ 1 hour ............................ 687 10

ating rule compli-

ant with this sec-
tion.
—General Move- 100,000 RR employees 60,000 briefings ............ 1 minute ........................ 1,000 50,000
ment Require-
ments: Job brief-
ings.
—Point Protection: 100,000 RR employees 87,600,000 deter/in- 1 minute ........................ 2,920,000 128,480,000
Visual determina- structions +
tion of clear track 87,600,000 signals.
and cor-
responding sig-
nals or instruc-
tions.
—Remote Control 100,000 RR employees 876,000 confirm ............ 1 minute ........................ 14,600 642,400
Movements: Con-
firmations by
Crew.
—Remote Control 100,000 RR employees 876,000 deter/commu- 1 minute ........................ 14,600 642,400
zone, exceptions nications.
to point protec-
tion: Determina-
tion/Communica-
tion track is clear.
—Operational ex- 6,000 RR Dispatchers .. 30,000 verified/permitted 1 minute ........................ 500 22,000
ceptions: Dis- movements.
patcher permitted
movements that
are verified.
218.101—Leaving Roll-
ing and On-Track
Maintenance-of-Way
Equipment in the
Clear:
—Operating Rule 687 Railroads ................ 687 amended op. rules 30 minutes .................... 344 10

that Complies 3.
with this section.
218.103—Hand-Oper-
ated Switches and
Derails:
—Operating Rule 687 Railroads ................ 687 amended op. rules 60 minutes .................... 687 10

that Complies
with this section.
—Minimum require- 632 Railroads ................ 632 modif rules ............. 60 minutes .................... 632 10

ments for ade-

quate job briefing.
—Actual job brief- 632 Railroads ................ 1,125,000 brfngs ........... 1 minute ........................ 18,750 825,000
ings conducted
by employees op-
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erating hand-op-
erated main track
switches.

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 8494 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations
CFR Section—49 CFR Respondent universe
218.105—Additional Job 687 Railroads ................
Briefings for hand-op-
erated main track
switches.
—Exclusive track 687 Railroads ................
occupancy: Re-
port of position of
main track switch-
es and convey-
ance of switch
position.
—Releasing author- 6,000 RR Dispatchers ..
ity limits: Ac-
knowledgments
and verbal con-
firmations of
hand-operated
main track switch-
es.
218.109—Hand-oper- 687 Railroads ................
ated fixed derails—
Job briefings.
1 Incl. RIA.
All estimates include the time for
reviewing instructions; searching
existing data sources; gathering or
maintaining the needed data; and
reviewing the information. For
information or a copy of the paperwork
package submitted to OMB, contact Mr.
Robert Brogan, Information Clearance
Officer, at 202–493–6292 or Gina
Christodoulou at 202–493–6139, or via
e-mail at robert.brogan@dot.gov or
gina.christodoulou@dot.gov.
OMB is required to make a decision
concerning the collection of information
requirements contained in this final rule
between 30 and 60 days after
publication of this document in the
Federal Register. Therefore, a comment
to OMB is best assured of having its full
effect if OMB receives it within 30 days
of publication. Any comments should
be sent to: The Office of Management
and Budget, 725 17th Street, NW.,
Washington, DC 20503, att: FRA Desk
Officer. Comments may also be sent via
e-mail to OMB at the following address:
oira_submissions@omb.eop.gov.
FRA is not authorized to impose a
penalty on persons for violating
information collection requirements
which do not display a current OMB
control number, if required. FRA
intends to obtain current OMB control
numbers for any new information
collection requirements resulting from
pwalker on PROD1PC71 with RULES3
this rulemaking action prior to the
effective date of the final rule. The OMB
control number, when assigned, will be
announced by separate notice in the
Federal Register.
VerDate Aug<31>2005 18:18 Feb 12, 2008 Jkt 214001 PO 00000
Total annual responses
60,000 briefings ............ 1 minute ........................
100,000 reports + 1 minute ........................
100,000 convey.
60,000 reports + 60,000 30 sec. + 5 sec .............
confirm.
562,500 brfngs .............. 30 seconds ...................
D. Federalism Implications
Executive Order 13132, ‘‘Federalism’’
(64 FR 43255, Aug. 10, 1999), requires
FRA to develop an accountable process
to ensure ‘‘meaningful and timely input
by State and local officials in the
development of regulatory policies that
have federalism implications.’’ ‘‘Policies
that have federalism implications’’ are
defined in the Executive Order to
include regulations that have
‘‘substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.’’ Under Executive
Order 13132, the agency may not issue
a regulation with Federalism
implications that imposes substantial
direct compliance costs and that is not
required by statute, unless the Federal
government provides the funds
necessary to pay the direct compliance
costs incurred by State and local
governments, the agency consults with
State and local governments, or the
agency consults with State and local
government officials early in the process
of developing the proposed regulation.
Where a regulation has Federalism
implications and preempts State law,
the agency seeks to consult with State
and local officials in the process of
developing the regulation.
This is a rule with preemptive effect.
Subject to a limited exception for
essentially local safety hazards, its
requirements will establish a uniform
Federal safety standard that must be
met, and State requirements covering
the same subject are displaced, whether
Frm 00054 Fmt 4701 Sfmt 4700
Average time per Total annual Total annual bur-
response burden hours den cost
1,000 10
3,334 10
583 10
4,688 234,400
those standards are in the form of State
statutes, regulations, local ordinances,
or other forms of state law, including
State common law. Preemption is
addressed in §§ 217.2 and 218.4, both
titled ‘‘Preemptive effect.’’ As stated in
the corresponding preamble language
for §§ 217.2 and 218.4, section 20106 of
Title 49 of the United States Code
provides that all regulations prescribed
by the Secretary related to railroad
safety preempt any State law,
regulation, or order covering the same
subject matter, except a provision
necessary to eliminate or reduce an
essentially local safety or security
hazard that is not incompatible with a
Federal law, regulation, or order and
that does not unreasonably burden
interstate commerce. This is consistent
with past practice at FRA, and within
the Department of Transportation.
FRA has analyzed this final rule in
accordance with the principles and
criteria contained in Executive Order
13132. FRA notes that the above factors
have been considered throughout the
development of this NPRM both
internally and through consultation
within the RSAC forum, as described in
Section II of this preamble. After the
Railroad Operating Rules Working
Group failed to reach a consensus
recommendation, FRA reported the
Working Group’s unofficial areas of
agreement and disagreement to the
RSAC. The RSAC has as permanent
voting members two organizations
representing State and local interests:
AASHTO and ASRSM. The RSAC
regularly provides recommendations to
the FRA Administrator for solutions to
E:\FR\FM\13FER3.SGM 13FER3
 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations
regulatory issues that reflect significant
input from its State members. To date,
FRA has received no indication of
concerns about the Federalism
implications of this rulemaking from
these representatives or from any other
representative. States and other
governments were afforded opportunity
to consult by virtue of the NPRM and
comment period.
It should be noted that on April 27,
2005, FRA received from the State of
California a petition for rulemaking on
the subject of remote control operations
referred to in the SUPPLEMENTARY
INFORMATION section as ‘‘Technology
Aided Point Protection.’’ The petition
requested that FRA initiate a rulemaking
‘‘to formally approve and establish rules
affecting RCL [i.e., remote control
locomotive] operations by railroads over
public highway-rail at-grade crossings.’’
California’s petition did not raise an
issue regarding preemption. On October
27, 2005, FRA denied California’s
rulemaking petition because it was
procedurally deficient and it did not
include sufficient information upon
which to base a rulemaking proceeding.
See Docket No. FRA–2005–21094
(found at http://dms.dot.gov/).
Nevertheless, this final rule contains
specific provisions of the kind requested
in the California petition.
For the foregoing reasons, FRA
believes that this final rule is in
accordance with the principles and
criteria contained in Executive Order
13132.
E. Environmental Impact
FRA has evaluated this final rule in
accordance with its ‘‘Procedures for
Considering Environmental Impacts’’
(FRA’s Procedures) (64 FR 28545, May
26, 1999) as required by the National
Environmental Policy Act (42 U.S.C.
4321 et seq.), other environmental
statutes, Executive Orders, and related
regulatory requirements. FRA has
determined that this final rule is not a
major FRA action (requiring the
preparation of an environmental impact
statement or environmental assessment)
because it is categorically excluded from
detailed environmental review pursuant
to section 4(c)(20) of FRA’s Procedures.
64 FR 28547, May 26, 1999. In
accordance with section 4(c) and (e) of
FRA’s Procedures, the agency has
further concluded that no extraordinary
circumstances exist with respect to this
regulation that might trigger the need for
pwalker on PROD1PC71 with RULES3
a more detailed environmental review.
As a result, FRA finds that this final rule
is not a major Federal action
significantly affecting the quality of the
human environment.
VerDate Aug<31>2005 18:18 Feb 12, 2008 Jkt 214001
F. Unfunded Mandates Act of 1995
Pursuant to Section 201 of the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4, 2 U.S.C. 1531), each
Federal agency ‘‘shall, unless otherwise
prohibited by law, assess the effects of
Federal regulatory actions on State,
local, and tribal governments, and the
private sector (other than to the extent
that such regulations incorporate
requirements specifically set forth in
law).’’ Section 202 of the Act (2 U.S.C.
1532) further requires that ‘‘before
promulgating any general notice of
proposed rulemaking that is likely to
result in the promulgation of any rule
that includes any Federal mandate that
may result in expenditure by State,
local, and tribal governments, in the
aggregate, or by the private sector, of
$100,000,000 or more (adjusted
annually for inflation) currently
$128,100,000 in any 1 year, and before
promulgating any final rule for which a
general notice of proposed rulemaking
was published, the agency shall prepare
a written statement’’ detailing the effect
on State, local, and tribal governments
and the private sector. The final rule
would not result in the expenditure, in
the aggregate, of $128,100,000 or more
in any one year, and thus preparation of
such a statement is not required.
G. Energy Impact
Executive Order 13211 requires
Federal agencies to prepare a Statement
of Energy Effects for any ‘‘significant
energy action.’’ 66 FR 28355 ( May 22,
2001). Under the Executive Order, a
‘‘significant energy action’’ is defined as
any action by an agency (normally
published in the Federal Register) that
promulgates or is expected to lead to the
promulgation of a final rule or
regulation, including notices of inquiry,
advance notices of proposed
rulemaking, and notices of proposed
rulemaking: (1)(i) that is a significant
regulatory action under Executive Order
12866 or any successor order, and (ii) is
likely to have a significant adverse effect
on the supply, distribution, or use of
energy; or (2) that is designated by the
Administrator of the Office of
Information and Regulatory Affairs as a
significant energy action. FRA has
evaluated this final rule in accordance
with Executive Order 13211. FRA has
determined that this final rule is not
likely to have a significant adverse effect
on the supply, distribution, or use of
energy. Consequently, FRA has
determined that this regulatory action is
not a ‘‘significant energy action’’ within
the meaning of Executive Order 13211.
PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
8495
List of Subjects
49 CFR Part 217
Penalties, Railroad safety, and
Reporting and recordkeeping
requirements.
49 CFR Part 218
Occupational safety and health,
Penalties, Railroad employees, Railroad
safety, and Reporting and recordkeeping
requirements.
The Final Rule
■ For the reasons discussed in the
preamble, FRA amends parts 217 and
218 of Title 49, Code of Federal
Regulations as follows:
PART 217—[AMENDED]
■ 1. The authority citation for part 217
continues to read as follows:
Authority: 49 U.S.C. 20103, 20107; 28
U.S.C. 2461, note; and 49 CFR 1.49.
■ 2. Section 217.2 is added to read as
follows:
§ 217.2 Preemptive effect.
Normal State negligence standards
apply where there is no Federal action
covering the subject matter. Under 49
U.S.C. 20106 (section 20106), issuance
of the regulations in this part preempts
any State law, regulation, or order
covering the same subject matter, except
an additional or more stringent law,
regulation, or order that is necessary to
eliminate or reduce an essentially local
railroad safety or railroad security
hazard; that is not incompatible with a
law, regulation, or order of the United
States Government; and that does not
unreasonably burden interstate
commerce. Section 20106 permits State
tort actions arising from events or
activities occurring on or after January
18, 2002, for the following: violation of
the Federal standard of care established
by regulation or order issued by the
Secretary of Transportation (with
respect to railroad safety, such as these
regulations) or the Secretary of
Homeland Security (with respect to
railroad security); a party’s violation of,
or failure to comply with, its own plan,
rule, or standard that it created pursuant
to a regulation or order issued by either
of the two Secretaries; and a party’s
violation of a State standard that is
necessary to eliminate or reduce an
essentially local safety or security
hazard, is not incompatible with a law,
regulation, or order of the United States
Government, and does not unreasonably
burden interstate commerce. Nothing in
section 20106 creates a Federal cause of
action on behalf of an injured party or
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 8496 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations
confers Federal question jurisdiction for
such State law causes of action.
■ 3. Section 217.4 is amended by adding
the following definitions of Associate
Administrator for Safety, FRA, and
Qualified in alphabetical order to read
as follows:
§ 217.4 Definitions.
* * * * * (c) Written program of operational
Associate Administrator for Safety
means the Associate Administrator for
Safety of the Federal Railroad
Administration or that person’s delegate
as designated in writing.
* * * * * rail operations. The program shall—
FRA means the Federal Railroad
Administration.
Qualified means that a person has
successfully completed all instruction,
training, and examination programs
required by the railroad and this part
and that the person, therefore, has
actual knowledge or may reasonably be
expected to have knowledge of the
subject on which the person is expected
to be competent.
* * * * * this section, as applicable;
■ 4. Section 217.9 is revised to read as
follows:
§ 217.9 Program of operational tests and
inspections; recordkeeping.
(a) Requirement to conduct
operational tests and inspections. Each
railroad to which this part applies shall
periodically conduct operational tests
and inspections to determine the extent
of compliance with its code of operating
rules, timetables, and timetable special
instructions, specifically including tests
and inspections sufficient to verify
compliance with the requirements of
subpart F of part 218 of this chapter, in
accordance with a written program as
required by paragraph (c) of this section.
(b) Railroad and railroad testing
officer responsibilities. The
requirements of this paragraph are
applicable on or after July 1, 2008.
(1) Each railroad officer who conducts
operational tests and inspections
(railroad testing officer) shall:
(i) Be qualified on the railroad’s
operating rules in accordance with
§ 217.11 of this part;
(ii) Be qualified on the operational
testing and inspection program
requirements and procedures relevant to
the testing and inspections the officer
will conduct;
(iii) Receive appropriate field training,
as necessary to achieve proficiency, on
each operational test or inspection that
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the officer is authorized to conduct; and
(iv) Conduct operational tests and
inspections in accordance with the
railroad’s program of operational tests
and inspections.
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(2) Written records documenting
qualification of each railroad testing
officer shall be retained at the railroad’s
system headquarters and at the division
headquarters for each division where
the officer is assigned and shall be made
available to representatives of the FRA
for inspection and copying during
normal business hours.
tests and inspections. Every railroad
shall have a written program of
operational tests and inspections in
effect. New railroads shall have such a
program within 30 days of commencing
(1) Provide for operational testing and
inspection under the various operating
conditions on the railroad. As of July 1,
2008, the program must address with
particular emphasis those operating
rules that cause or are likely to cause the
most accidents or incidents, such as
those accidents or incidents identified
in the quarterly reviews, six month
reviews, and the annual summaries as
required under paragraphs (e) and (f) of
(2) Require a minimum number of
tests and inspections per year covering
the requirements of part 218, subpart F
of this chapter;
(3) Describe each type of operational
test and inspection required, including
the means and procedures used to carry
it out;
(4) State the purpose of each type of
operational test and inspection;
(5) State, according to operating
divisions where applicable, the
frequency with which each type of
operational test and inspection is to be
conducted;
(6) As of July 1, 2008, identify the
officer(s) by name, job title, and,
division or system, who shall be
responsible for ensuring that the
program of operational tests and
inspections is properly implemented.
The responsibilities of such officers
shall include, but not be limited to,
ensuring that the railroad’s testing
officers are directing their efforts in an
appropriate manner to reduce accidents/
incidents and that all required reviews
and summaries are completed. A
railroad with divisions shall identify at
least one officer at the system
headquarters who is responsible for
overseeing the entire program and the
implementation by each division.
(7) Include a schedule for making the
program fully operative within 210 days
after it begins.
(d) Records. (1) Each railroad to
which this part applies shall keep a
record of the date, time, place, and
result of each operational test and
inspection that was performed in
PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
accordance with its program. Each
record shall specify the officer
administering the test and inspection
and each employee tested. These
records shall be retained at the system
headquarters and at each division
headquarters where the tests and
inspections are conducted for one
calendar year after the end of the
calendar year to which they relate.
These records shall be made available to
representatives of the FRA for
inspection and copying during normal
business hours.
(2) Each railroad shall retain one copy
of its current program for periodic
performance of the operational tests and
inspections required by paragraph (a) of
this section and one copy of each
subsequent amendment to such
program. These records shall be retained
at the system headquarters and at each
division headquarters where the tests
and inspections are conducted for three
calendar years after the end of the
calendar year to which they relate.
These records shall be made available to
representatives of the FRA for
inspection and copying during normal
business hours.
(e) Reviews of tests and inspections
and adjustments to the program of
operational tests. This paragraph (e)
shall apply to each Class I railroad and
the National Railroad Passenger
Corporation effective July 1, 2008 and to
all other railroads subject to this
paragraph effective January 1, 2009.
(1) Reviews by railroads other than
passenger railroads. Each railroad to
which this part applies shall conduct
periodic reviews and analyses as
provided in this paragraph and shall
retain, at each division headquarters,
where applicable, and at its system
headquarters, one copy of the following
written reviews, provided however that
this requirement does not apply to
either a railroad with less than 400,000
total employee work hours annually or
a passenger railroad subject to
paragraph (e)(2) of this section.
(i) Quarterly review. The designated
officer of each division headquarters, or
system headquarters, if no division
headquarters exists, shall conduct a
written quarterly review of the accident/
incident data, the results of prior
operational tests and inspections, and
other pertinent safety data for that
division or system to identify the
relevant operating rules related to those
accidents/incidents that occurred
during the quarter. The review shall also
include the name of each railroad
testing officer, the number of tests and
inspections conducted by each officer,
and whether the officer conducted the
minimum number of each type of test or
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 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations
inspection required by the railroad’s
program. Based upon the results of that
review, the designated officer shall
make any necessary adjustments to the
tests and inspections required of
railroad officers for the subsequent
period(s). Quarterly reviews and
adjustments shall be completed no later
than 30 days after the quarter has ended.
(ii) Six month review. The designated
officer of each system headquarters
office responsible for development and
administration of the program of
operational tests and inspections shall
conduct a review of the program of
operational tests and inspections on a
six month basis to ensure that it is being
utilized as intended, that the quarterly
reviews provided for in this paragraph
have been properly completed, that
appropriate adjustments have been
made to the distribution of tests and
inspections required, and that the
railroad testing officers are
appropriately directing their efforts. Six
month reviews shall be completed no
later than 60 days after the review
period has ended.
(2) Reviews by passenger railroads.
Not less than once every six months, the
designated officer(s) of the National
Railroad Passenger Corporation and of
each railroad providing commuter
service in a metropolitan or suburban
area shall conduct periodic reviews and
analyses as provided in this paragraph
and shall retain, at each division
headquarters, where applicable, and at
its system headquarters, one copy of the
reviews. Each such review shall be
completed within 30 days of the close
of the period. The designated officer(s)
shall conduct a written review of:
(i) The operational testing and
inspection data for each division, if any,
or the system to determine compliance
by the railroad testing officers with its
program of operational tests and
inspections required by paragraph (c) of
this section. At a minimum, this review
shall include the name of each railroad
testing officer, the number of tests and
inspections conducted by each officer,
and whether the officer conducted the
minimum number of each type of test or
inspection required by the railroad’s
program;
(ii) Accident/incident data, the results
of prior operational tests and
inspections, and other pertinent safety
data for each division, if any, or the
system to identify the relevant operating
rules related to those accidents/
pwalker on PROD1PC71 with RULES3
incidents that occurred during the
period. Based upon the results of that
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review, the designated officer(s) shall
make any necessary adjustments to the
tests and inspections required of
railroad officers for the subsequent
period(s); and
(iii) Implementation of the program of
operational tests and inspections from a
system perspective, to ensure that it is
being utilized as intended, that the other
reviews provided for in this paragraph
have been properly completed, that
appropriate adjustments have been
made to the distribution of tests and
inspections required, and that the
railroad testing officers are
appropriately directing their efforts.
(3) Records retention. The records of
periodic reviews required in paragraphs
(e)(1) and (e)(2) of this section shall be
retained for a period of one year after
the end of the calendar year to which
they relate and shall be made available
to representatives of FRA for inspection
and copying during normal business
hours.
(f) Annual summary of operational
tests and inspections. Before March 1 of
each calendar year, each railroad to
which this part applies, except for a
railroad with less than 400,000 total
employee work hours annually, shall
retain, at each of its division
headquarters and at the system
headquarters of the railroad, one copy of
a written summary of the following with
respect to its previous calendar year
activities: The number, type, and result
of each operational test and inspection,
stated according to operating divisions
where applicable, that was conducted as
required by paragraphs (a) and (c) of this
section. These records shall be retained
for three calendar years after the end of
the calendar year to which they relate
and shall be made available to
representatives of the FRA for
inspection and copying during normal
business hours.
(g) Electronic recordkeeping. Each
railroad to which this part applies is
authorized to retain by electronic
recordkeeping the information
prescribed in this section, provided that
all of the following conditions are met:
(1) The railroad adequately limits and
controls accessibility to such
information retained in its electronic
database system and identifies those
individuals who have such access;
(2) The railroad has a terminal at the
system headquarters and at each
division headquarters;
(3) Each such terminal has a computer
(i.e., monitor, central processing unit,
PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
8497
and keyboard) and either a facsimile
machine or a printer connected to the
computer to retrieve and produce
information in a usable format for
immediate review by FRA
representatives;
(4) The railroad has a designated
representative who is authorized to
authenticate retrieved information from
the electronic system as true and
accurate copies of the electronically
kept records; and
(5) The railroad provides
representatives of the FRA with
immediate access to these records for
inspection and copying during normal
business hours and provides printouts
of such records upon request.
(h) Upon review of the program of
operational tests and inspections
required by this section, the Associate
Administrator for Safety may, for cause
stated, disapprove the program.
Notification of such disapproval shall be
made in writing and specify the basis
for the disapproval decision. If the
Associate Administrator for Safety
disapproves the program,
(1) The railroad has 35 days from the
date of the written notification of such
disapproval to:
(i) Amend its program and submit it
to the Associate Administrator for
Safety for approval; or
(ii) Provide a written response in
support of the program to the Associate
Administrator for Safety, who informs
the railroad of FRA’s final decision in
writing; and
(2) A failure to submit the program
with the necessary revisions to the
Associate Administrator for Safety in
accordance with this paragraph will be
considered a failure to implement a
program under this part.
■ 5. Section 217.11(c) is revised to read
as follows:
§ 217.11 Program of instruction on
operating rules; recordkeeping; electronic
recordkeeping.
* * * * *
(c) Each railroad to which this part
applies is authorized to retain by
electronic recordkeeping its program for
periodic instruction of its employees on
operating rules provided that the
requirements stated in § 217.9(g)(1)
through (5) of this part are satisfied.
■ 6. Appendix A to part 217 is amended
by revising the entry for § 217.9 to read
as follows:
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 8498 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations

APPENDIX A TO PART 217—SCHEDULE OF CIVIL PENALTIES

Section Violation Willful violation

* * * * * * *
217.9 Operational tests and inspections:
(a) Failure to implement a program .......................................................................................................... $9,500–12,500 $13,000–16,000
(b) Railroad and railroad testing officer responsibilities:
(1) Failure to provide instruction, examination, or field training, or failure to conduct tests in ac-
cordance with program .................................................................................................................. 9,500 13,000
(2) Records ........................................................................................................................................ 7,500 11,000
(c) Record of program; program incomplete ............................................................................................ 7,500–12,500 11,000–16,000
(d) Records of individual tests and inspections ....................................................................................... 7,500 ............................
(e) Failure to retain copy of or conduct:
(1)(i) Quarterly review ........................................................................................................................ 9,500 13,000
(1)(ii) and (2) Six month review ......................................................................................................... 9,500 13,000
(3) Records ........................................................................................................................................ 7,500 11,000
(f) Annual summary .................................................................................................................................. 7,500 11,000
(h) Failure to timely or appropriately amend program after disapproval .................................................. 9,500–12,500 13,000–16,000

* * * * * * *

PART 218—[AMENDED] section 20106 creates a Federal cause of member must leave one lighted fusee
action on behalf of an injured party or and while returning to the crew
■ 7. The authority citation for part 218 confers Federal question jurisdiction for member’s train, the crew member must
continues to read as follows: such State law causes of action. also place single lighted fusees at
Authority: 49 U.S.C. 20103, 20107; 28 ■ 9. Section 218.5 is amended by intervals that do not exceed the burning
U.S.C. 2461, note; and 49 CFR 1.49. revising the definitions of Flagman’s time of the fusee. When the train
■ 8. Section 218.4 is added to read as signals and Locomotive to read as departs, a crew member must leave one
follows: follows: lighted fusee and until the train resumes
speed not less than one-half the
§ 218.4 Preemptive effect. § 218.5 Definitions. maximum authorized speed (including
Normal State negligence standards * * * * * slow order limits) in that territory, the
apply where there is no Federal action Flagman’s signals means a red flag by crew member must drop off single
covering the subject matter. Under 49 day and a white light at night, and lighted fusees at intervals that do not
U.S.C. 20106 (section 20106), issuance fusees as prescribed in the railroad’s exceed the burning time of the fusee.
of the regulations in this part preempts operating rules. (iv) When required by the railroad’s
any State law, regulation, or order * * * * * operating rules, a forward crew member
covering the same subject matter, except Locomotive means, except for with flagman’s signals must protect the
an additional or more stringent law, purposes of subpart F of this part, a self- front of the crew member’s train against
regulation, or order that is necessary to propelled unit of equipment designed opposing movements by immediately
eliminate or reduce an essentially local for moving other railroad rolling going forward at least the distance
railroad safety or railroad security equipment in revenue service including prescribed by timetable or other
hazard; that is not incompatible with a a self-propelled unit designed to carry instructions for the territory, displaying
law, regulation, or order of the United freight or passenger traffic, or both, and one lighted fusee, and remaining at that
States Government; and that does not may consist of one or more units location until recalled.
unreasonably burden interstate operated from a single control. * * * * *
commerce. Section 20106 permits State * * * * * ■ 11. Add new subpart F to part 218 to
tort actions arising from events or
■ 10. Section 218.37 is amended by read as follows:
activities occurring on or after January
revising paragraphs (a)(1)(iii) and
18, 2002, for the following: Violation of Subpart F—Handling Equipment, Switches,
(a)(1)(iv) to read as follows: and Fixed Derails
the Federal standard of care established
by regulation or order issued the § 218.37 Flag protection. Sec.
Secretary of Transportation (with (a) * * * 218.91 Purpose and scope.
respect to railroad safety, such as these (1) * * * 218.93 Definitions.
regulations) or the Secretary of (iii) When a train stops on main track, 218.95 Instruction, training, and
examination.
Homeland Security (with respect to flag protection against following trains 218.97 Good faith challenge procedures.
railroad security); a party’s violation of, on the same track must be provided as 218.99 Shoving or pushing movements.
or failure to comply with, its own plan, follows: A crew member with flagman’s 218.101 Leaving rolling and on-track
rule, or standard that it created pursuant signals must immediately go back at maintenance-of-way equipment in the
to a regulation or order issued by either least the distance prescribed by clear.
of the two Secretaries; and a party’s timetable or other instructions for the 218.103 Hand-operated switches, including
violation of a State standard that is territory and display one lighted fusee. crossover switches.
necessary to eliminate or reduce an The crew member may then return one- 218.105 Additional operational
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requirements for hand-operated main

essentially local safety or security half of the distance to the crew track switches.
hazard, is not incompatible with a law, member’s train where the crew member 218.107 Additional operational
regulation, or order of the United States must remain until the crew member has requirements for hand-operated
Government, and does not unreasonably stopped the approaching train or is crossover switches.
burden interstate commerce. Nothing in recalled. When recalled, the crew 218.109 Hand-operated fixed derails.

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 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations
Subpart F—Handling Equipment,
Switches, and Fixed Derails
§ 218.91 Purpose and scope.
(a) The purpose of this subpart is to
prevent accidents and casualties that
can result from the mishandling of
equipment, switches, and fixed derails.
(b) This subpart prescribes minimum
operating rule requirements for the
handling of equipment, switches, and
fixed derails. Each railroad may
prescribe additional or more stringent
requirements in its operating rules,
timetables, timetable special
instructions, and other instructions.
§ 218.93 Definitions.
As used in this subpart—
Associate Administrator for Safety
means the Associate Administrator for
Safety of the Federal Railroad
Administration or that person’s delegate
as designated in writing.
Clearance point means the location
near a turnout beyond which it is unsafe
for passage on an adjacent track(s).
Where a person is permitted by a
railroad’s operating rules to ride the side
of a car, a clearance point shall
accommodate a person riding the side of
a car.
Correspondence of crossover switches
means both crossover switches are lined
for the crossover or both are lined for
the straight tracks.
Crossover means, for purposes of this
subpart only, a track connection
between two adjacent, but not
necessarily parallel, tracks, consisting of
two switches, which is intended to be
used primarily for the purpose of
crossing over from one track to another.
Employee means an individual who is
engaged or compensated by a railroad or
by a contractor to a railroad to perform
any of the duties defined in this subpart.
Foul or fouling a track means rolling
equipment or on-track maintenance-of-
way equipment is located such that the
end of the equipment is between the
clearance point and the switch points
leading to the track on which the
equipment is standing.
FRA means the Federal Railroad
Administration.
Hand-operated switch means any type
of switch when operated by manual
manipulation. For purposes of this
subpart, a hand-operated switch does
not include switches operated by push
button or radio control when such
switch is protected by distant switch
indicators, switch point indicators, or
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other visual or audio verification that
the switch points are lined for the
intended route and fit properly.
Highway-rail grade crossing means,
for purposes of this subpart only, an at-
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grade crossing where a public highway,
road, street, or private roadway,
including associated sidewalks and
pathways, crosses one or more railroad
tracks at grade, and is identified by a
U.S. DOT National Highway-Rail Grade
Crossing Inventory Number, or is
marked by crossbucks, stop signs, or
other appropriate signage indicating the
presence of an at-grade crossing.
Industry track means a switching
track, or series of tracks, serving the
needs of a commercial industry other
than a railroad.
Lite locomotive consist means two or
more locomotive units coupled without
cars attached, regardless of whether the
locomotive units are connected so that
they may be operated from a single
control stand.
Locomotive means, for purposes of
this subpart only, a piece of on-track
equipment (other than specialized
roadway maintenance equipment or a
dual purpose vehicle operating in
accordance with § 240.104(a)(2) of this
chapter):
(1) With one or more propelling
motors designed for moving other
equipment;
(2) With one or more propelling
motors designed to carry freight or
passenger traffic or both; or
(3) Without propelling motors but
with one or more control stands.
Pedestrian crossing means a separate
designated sidewalk or pathway where
pedestrians, but not vehicles, cross
railroad tracks. Sidewalk crossings
contiguous with, or separate but
adjacent to, highway-rail grade
crossings, are presumed to be part of the
highway-rail grade crossings and are not
considered pedestrian crossings.
Qualified means that a person has
successfully completed all instruction,
training, and examination programs
required by the railroad and this subpart
and that the person, therefore, has
actual knowledge or may reasonably be
expected to have knowledge of the
subject on which the person is expected
to be competent.
Remote control operator means a
locomotive engineer, as defined in
§ 240.7 of this chapter, certified by a
railroad to operate remote control
locomotives pursuant to § 240.107 of
this chapter.
Remote control zone means one or
more tracks within defined limits
designated in the timetable special
instructions, or other railroad
publication, within which remote
control locomotives, under certain
circumstances specified in this part,
may be operated without an employee
assigned to protect the pull-out end of
PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
8499
the remote control movement, i.e., the
end on which the locomotive is located.
Roadway maintenance activity means
any work limited to the duties
prescribed for a roadway worker by
definition in this section, including
movement of on-track maintenance-of-
way equipment other than locomotives.
Roadway worker means any employee
of a railroad, or of a contractor to a
railroad, whose duties include
inspection, construction, maintenance
or repair of railroad track, bridges,
roadway, signal and communication
systems, electric traction systems,
roadway facilities or roadway
maintenance machinery on or near track
or with the potential of fouling a track,
and flagmen and watchmen/lookouts as
defined in § 214.7 of this chapter.
Roadway worker in charge means a
roadway worker who is qualified in
accordance with § 214.353 of this
chapter for the purpose of establishing
on-track safety for roadway work
groups.
Siding means an auxiliary track,
adjacent and connected to a main track,
used for meeting or passing trains.
Signaled siding means a siding within
traffic control system (TCS) territory or
within interlocking limits where a
signal indication authorizes the siding’s
use.
Switchtender means a qualified
employee assigned to handle switches at
a specific location.
Track is clear means:
(1) The portion of the track to be used
for the intended movement is
unoccupied by rolling equipment, on-
track maintenance-of-way equipment,
and conflicting on-track movements;
(2) Intervening public highway-rail
grade crossings, private highway-rail
grade crossings outside the physical
confines of a railroad yard, pedestrian
crossings outside of the physical
confines of a railroad yard, and yard
access crossings are protected as
follows:
(i) Crossing gates are in the fully
lowered position, and are not known to
be malfunctioning; or
(ii) A designated and qualified
employee is stationed at the crossing
and has the ability to communicate with
trains; or
(iii) At crossings equipped only with
flashing lights or passive warning
devices, when it is clearly seen that no
traffic is approaching or stopped at the
crossing and the leading end of the
movement over the crossing does not
exceed 15 miles per hour;
(3) Intervening switches and fixed
derails are properly lined for the
intended movement; and
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 8500 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations
(4) The portion of the track to be used
for the intended movement has
sufficient room to contain the rolling
equipment being shoved or pushed.
Yard access crossing means a private
highway-rail grade crossing that is
located within the physical confines of
a railroad yard and is either:
(1) Open to unrestricted public access;
or
(2) Open to persons other than
railroad employees going about their
normal duties, e.g., business guests or
family members.
§ 218.95 Instruction, training, and
examination.
(a) Program. Effective July 1, 2008,
each railroad shall maintain a written
program of instruction, training, and
examination of employees for
compliance with operating rules
implementing the requirements of this
subpart to the extent these requirements
are pertinent to the employee’s duties.
If all requirements of this subpart are
satisfied, a railroad may consolidate any
portion of the instruction, training or
examination required by this subpart
with the program of instruction required
under § 217.11 of this chapter. An
employee who successfully completes
all instruction, training, and
examination required by this written
program shall be considered qualified.
(1) The written program of
instruction, training, and examination
shall address the requirements of this
subpart, as well as consequences of
noncompliance.
(2) The written program of
instruction, training, and examination
shall include procedures addressing
how the railroad qualifies employees in
any technology necessary to accomplish
work subject to the requirements of this
subpart. Such procedures shall include,
but are not limited to, those which
explain:
(i) The purpose for using the
technology;
(ii) How an employee will be
expected to use the technology;
(iii) How to detect malfunctioning
equipment or deviations from proper
procedures;
(iv) How to respond when equipment
malfunctions or deviations from proper
procedures are detected; and
(v) How to prevent unintentional
interference with the proper functioning
of the technology.
(3) Implementation schedule for
employees, generally. Each employee
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performing duties subject to the
requirements in this subpart shall be
initially qualified prior to January 1,
2009. Employees hired between April
14, 2008 and January 1, 2009, and all
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employees thereafter required to
perform duties subject to the
requirements in this subpart shall be
qualified before performing duties
subject to the requirements in this
subpart.
(4) After January 1, 2009, no employee
shall perform work requiring
compliance with the operating rules
implementing the requirements of this
subpart unless qualified on these rules
within the previous three years.
(5) The records of successful
completion of instruction, examination
and training required by this section
shall document qualification of
employees under this subpart.
(b) Written records documenting
successful completion of instruction,
training, and examination of each
employee required by this subpart shall
be retained at its system headquarters
and at the division headquarters for
each division where the employee is
assigned for three calendar years after
the end of the calendar year to which
they relate and made available to
representatives of the FRA for
inspection and copying during normal
business hours. Each railroad to which
this part applies is authorized to retain
a program, or any records maintained to
prove compliance with such a program,
by electronic recordkeeping in
accordance with §§ 217.9(g) and
217.11(c) of this chapter.
(c) Upon review of the program of
instruction, training, and examination
required by this section, the Associate
Administrator for Safety may, for cause
stated, disapprove the program.
Notification of such disapproval shall be
made in writing and specify the basis
for the disapproval decision. If the
Associate Administrator for Safety
disapproves the program,
(1) The railroad has 35 days from the
date of the written notification of such
disapproval to:
(i) Amend its program and submit it
to the Associate Administrator for
Safety for approval; or
(ii) Provide a written response in
support of the program to the Associate
Administrator for Safety, who informs
the railroad of FRA’s final decision in
writing; and
(2) A failure to submit the program
with the necessary revisions to the
Associate Administrator for Safety in
accordance with this paragraph will be
considered a failure to implement a
program under this part.
§ 218.97 Good faith challenge procedures.
(a) Employee Responsibility. An
employee shall inform the railroad or
employer whenever the employee
makes a good faith determination that
PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
the employee has been directed to either
take actions that would violate FRA
regulations regarding the handling of
equipment, switches, and fixed derails
as required by this subpart, or to take
actions that would violate the railroad’s
operating rules implementing the
requirements of this subpart.
(b) General procedures. Each railroad
or employer is responsible for the
training of and compliance by its
employees with the requirements of this
subpart.
(1) Each railroad or employer shall
adopt and implement written
procedures which guarantee each
employee the right to challenge in good
faith whether the procedures that will
be used to accomplish a specific task
comply with the requirements of this
subpart or any operating rule relied
upon to fulfill the requirements of this
subpart. Each railroad or employer’s
written procedures shall provide for
prompt and equitable resolution of
challenges made in accordance with this
subpart.
(2) The written procedures required
by this section shall indicate that the
good faith challenge described in
paragraph (b)(1) of this section is not
intended to abridge any rights or
remedies available to the employee
under a collective bargaining agreement,
or any Federal law including, but not
limited to, 29 U.S.C. 651 et seq., 6
U.S.C. 1142, or 49 U.S.C. 20109.
(3) Each affected employee shall be
instructed on the written procedures
required by this paragraph as part of the
training prescribed by § 217.11 of this
chapter.
(4) A copy of the current written
procedures shall be provided to each
affected employee and made available
for inspection and copying by
representatives of the FRA during
normal business hours.
(c) The written procedures shall—
(1) Grant each employee the right to
challenge any directive which, based on
the employee’s good faith
determination, would cause the
employee to violate any requirement of
this subpart or any operating rule relied
upon to fulfill the requirements of this
subpart;
(2) Provide that the railroad or
employer shall not require the
challenging employee to comply with
the directive until the challenge
resulting from the good faith
determination is resolved;
(3) Provide that the railroad or
employer may require the challenging
employee to perform tasks unrelated to
the challenge until the challenge is
resolved;
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(4) Provide that the railroad or
employer may direct an employee, other
than the challenging employee, to
perform the challenged task prior to the
challenge being resolved as long as this
other employee is informed of the
challenge and does not also make a good
faith determination that the challenged
task would violate FRA regulations
regarding the handling of equipment,
switches, and fixed derails as required
in this subpart, or a railroad’s operating
rules implementing the requirements of
this subpart;
(5) Provide that a challenge may be
resolved by:
(i) A railroad or employer officer’s
acceptance of the employee’s request;
(ii) An employee’s acceptance of the
directive;
(iii) An employee’s agreement to a
compromise solution acceptable to the
person issuing the directive; or
(iv) As further determined under
paragraph (d) of this section.
(d) In the event that the challenge
cannot be resolved because the person
issuing the directive determines that the
employee’s challenge has not been made
in good faith or there is no reasonable
alternative to the direct order, the
written procedures shall:
(1) Provide for immediate review by at
least one officer of the railroad or
employer, except for each railroad with
less than 400,000 total employee work
hours annually. This immediate review
shall:
(i) Not be conducted by the person
issuing the challenged directive, or that
person’s subordinate; and
(ii) Provide that a challenge may be
resolved by using the same options
available for resolving the challenge as
the initial officer as well as the option
described in paragraph (d)(2) of this
section, except that the reviewing
officer’s decision shall not be subject to
further immediate review, unless
provided for in the railroad’s or
employer’s written procedures;
(2) Provide that if the officer making
the railroad’s or employer’s final
decision concludes that the challenged
directive would not cause the employee
to violate any requirement of this
subpart or the railroad’s or employer’s
operating rule relied upon to fulfill the
requirements of this subpart and directs
the employee to perform the challenged
directive, the officer shall further
explain to the employee that Federal
law may protect the employee from
retaliation if the employee refuses to do
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the work and if the employee’s refusal
is a lawful, good faith act;
(3) Provide that the employee be
afforded an opportunity to document
electronically or in writing any protest
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to the railroad or employer’s final
decision before the tour of duty is
complete. The employee shall be
afforded the opportunity to retain a
copy of the protest;
(4) Provide that the employee, upon
written request, has a right to further
review by a designated railroad or
employer officer, within 30 days after
the expiration of the month during
which the challenge occurred, for the
purpose of verifying the proper
application of the regulation, law,
procedure or rule in question. The
verification decision shall be made in
writing to the employee.
(e) Recordkeeping and record
retention. (1) A copy of the written
procedures required by this section
shall be retained at the employer or
railroad’s system headquarters and at
each division headquarters, and made
available to representatives of the FRA
for inspection and copying during
normal business hours.
(2) A copy of any written good faith
challenge verification decision, made in
accordance with paragraph (d)(4) of this
section, shall be retained at the
employer or railroad’s system
headquarters and at the division
headquarters to which the employee
was working when the challenge was
initiated, and made available to
representatives of the FRA for
inspection and copying during normal
business hours for at least one calendar
year after expiration of the year during
which the decision was issued.
(3) Each employer or railroad to
which this subpart applies is authorized
to retain by electronic recordkeeping the
information prescribed in this subpart
in accordance with the electronic
recordkeeping standards set forth in
§ 217.9(g)(1) through (5) of this chapter.
§ 218.99 Shoving or pushing movements.
(a)(1) Each railroad shall adopt and
comply with an operating rule which
complies with the requirements of this
section. When any person including, but
not limited to, each railroad, railroad
officer, supervisor, and employee
violates any requirement of an operating
rule which complies with the
requirements of this section, that person
shall be considered to have violated the
requirements of this section.
(2) The following requirements for
shoving or pushing movements do not
apply to rolling equipment intentionally
shoved or pushed to permit the rolling
equipment to roll without power
attached, i.e., free rolling equipment,
during switching activities known as
kicking, humping, or dropping cars.
(b) General movement
requirements.—(1) Job briefing. Rolling
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8501
equipment shall not be shoved or
pushed until the locomotive engineer
participating in the move has been
briefed by the employee who will direct
the move. The job briefing shall include
the means of communication to be used
between the locomotive engineer and
the employee directing the move and
how point protection will be provided.
(2) No unrelated tasks. During the
shoving or pushing movement, the
employee directing the movement shall
not engage in any task unrelated to the
oversight of the shoving or pushing
movement.
(3) Point protection. When rolling
equipment or a lite locomotive consist
is shoved or pushed, point protection
shall be provided by a crewmember or
other qualified employee by:
(i) Visually determining that the track
is clear. The determination that the
track is clear may be made with the aid
of monitored cameras or other
technological means, provided that it
and the procedures for use provide an
equivalent level of protection to that of
a direct visual determination by a
crewmember or other qualified
employee properly positioned to make
the observation as prescribed in this
section and appendix D to this part; and
(ii) Giving signals or instructions
necessary to control the movement.
(c) Additional requirements for
remote control movements. All remote
control movements are considered
shoving or pushing movements, except
when the remote control operator
controlling the movement is riding the
leading end of the leading locomotive in
a position to visually determine
conditions in the direction of
movement. In addition to the other
requirements of this section,
(1) When initiating a remote control
shoving or pushing movement:
(i) The remote control operator shall
visually determine the direction the
equipment moves; or
(ii) A member of the crew shall
visually determine the direction the
equipment moves and confirm the
direction with the remote control
operator. If no confirmation is received,
the movement shall be immediately
stopped; and
(2) If technology is relied upon,
whether primarily or as a safeguard, to
provide pull-out protection by
preventing the movement from
exceeding the limits of a remote control
zone, the technology shall be
demonstrated
(i) To be failsafe; or
(ii) To provide suitable redundancy to
prevent unsafe failure.
(d) Remote control zone, exception to
track is clear requirements. After an
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initial track is clear determination has
been made in an activated remote
control zone, it is not necessary to make
a new determination prior to each
subsequent shoving or pushing
movement provided that:
(1) The controlling locomotive of the
remote control movement is on the
leading end in the direction of
movement, i.e., the movement occurs on
the pull-out end;
(2) The remote control zone is not
jointly occupied; and
(3) The initial determination was
made by a crewmember of either:
(i) The remote control crew;
(ii) A relieved remote control crew
who has transferred the remote control
zone directly to the relieving crew; or
(iii) The last jointly occupying crew
who directly communicates, i.e., not
through a third party, to a remote
control crewmember that the remote
control zone is no longer jointly
occupied and meets the requirements
for track is clear.
(e) Operational exceptions. A railroad
does not need to comply with
paragraphs (b) through (d) of this
section in the following circumstances:
(1) Push-pull operations when
operated from the leading end in the
direction of movement, i.e., push mode;
(2) Shoving or pushing operations
with manned helper locomotives or
distributed power locomotives assisting
a train when the train is being operated
from the leading end in the direction of
movement;
(3) During the performance of
roadway maintenance activity under the
direct control of a roadway worker
performing work in accordance with
railroad operating rules specific to
roadway workers; or
(4) When the leading end of a shoving
movement is on a main track or signaled
siding, under the following conditions:
(i) The train dispatcher gives
authority or permission to make the
movement and verifies that:
(A) Another movement or work
authority is not in effect within the
same or overlapping limits unless
conflicting movements are protected;
and
(B) A main track is not removed from
service by a work authority within the
same or overlapping limits;
(ii) Movement is limited to the train’s
authority;
(iii) Movement shall not be made into
or within yard limits, restricted limits,
drawbridges, or work authority limits;
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(iv) Movement shall not enter or foul
a highway-rail grade crossing or
pedestrian crossing except when:
(A) Crossing gates are in the fully
lowered position; or
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(B) A designated and qualified
employee is stationed at the crossing
and has the ability to communicate with
trains; or
(C) At crossings equipped only with
flashing lights or passive warning
devices, when it is clearly seen that no
traffic is approaching or stopped at the
crossing and the leading end of the
movement over the crossing does not
exceed 15 miles per hour; and
(v) Movement shall not be made into
or within interlocking limits or
controlled point limits unless the
following conditions are met:
(A) The signal governing movement is
more favorable than restricting aspect;
(B) Each signal governing movement
into and through interlocking limits or
controlled point limits shall be
continuously observed by a member of
that crew who is in a position to
determine that the train’s movement has
occupied the circuit controlling that
signal as evidenced by that signal
assuming its most restrictive aspect; and
(C) The movement does not exceed
the train’s length.
§ 218.101 Leaving rolling and on-track
maintenance-of-way equipment in the clear.
(a) Each railroad shall adopt and
comply with an operating rule which
complies with the requirements of this
section. When any person including, but
not limited to, each railroad, railroad
officer, supervisor, and employee
violates any requirement of an operating
rule which complies with the
requirements of this section, that person
shall be considered to have violated the
requirements of this section.
(b) Rolling and on-track maintenance-
of-way equipment shall not be left
where it will foul a connecting track
unless:
(1) The equipment is standing on a
main track and a siding track switch
that the equipment is fouling is lined for
the main track on which the equipment
is standing; or
(2) The equipment is standing on a
siding and a main track switch that the
equipment is fouling is lined for the
siding on which the equipment is
standing; or
(3) The equipment is standing on a
yard switching lead track, and the yard
track switch that the equipment is
fouling is lined for the yard switching
lead track on which the equipment is
standing; or
(4) The equipment is on an industry
track beyond the clearance point of the
switch leading to the industry.
(c) Each railroad shall implement
procedures that enable employees to
identify clearance points and a means to
identify locations where clearance
PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
points will not permit a person to safely
ride on the side of a car.
§ 218.103 Hand-operated switches,
including crossover switches.
(a)(1) Each railroad shall adopt and
comply with an operating rule which
complies with the requirements of this
section. When any person including, but
not limited to, each railroad, railroad
officer, supervisor, and employee
violates any requirement of an operating
rule which complies with the
requirements of this section, that person
shall be considered to have violated the
requirements of this section.
(2) Each railroad shall specify
minimum requirements necessary for an
adequate job briefing.
(b) General. Employees operating or
verifying the position of a hand-
operated switch shall:
(1) Conduct job briefings, before work
is begun, each time a work plan is
changed, and at completion of the work;
(2) Be qualified on the railroad’s
operating rules relating to the operation
of the switch;
(3) Be individually responsible for the
position of the switch in use;
(4) Visually determine that switches
are properly lined for the intended route
and that no equipment is fouling the
switches;
(5) Visually determine that the points
fit properly and the target, if so
equipped, corresponds with the switch’s
position;
(6) After operating a switch and before
making movements in either direction
over the switch, ensure that the switch
is secured from unintentional
movement of the switch points;
(7) Ensure that a switch is not
operated while rolling and on-track
maintenance-of-way equipment is
fouling the switch, or standing or
moving over the switch; and
(8) After operating a switch, ensure
that when not in use, each switch is
locked, hooked, or latched, if so
equipped.
(c) Rolling and on-track maintenance-
of-way equipment shall not foul a track
until all hand-operated switches
connected with the movement are
properly lined, or in the case of hand-
operated switches designed and
permitted to be trailed through, until the
intended route is seen to be clear or the
train has been granted movement
authority. When a conflicting movement
is approaching a hand-operated switch,
the track shall not be fouled or the
switch operated.
(d) When rolling and on-track
maintenance-of-way equipment has
entered a track, the hand-operated
switch to that track shall not be lined
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away from the track until the equipment
has passed the clearance point of the
track.
§ 218.105 Additional operational
requirements for hand-operated main track
switches.
(a) Each railroad shall adopt and
comply with an operating rule which
complies with the requirements of this
section. When any person including, but
not limited to, each railroad, railroad
officer, supervisor, and employee
violates any requirement of an operating
rule which complies with the
requirements of this section, that person
shall be considered to have violated the
requirements of this section.
(b) Designating switch position. The
normal position of a hand-operated
main track switch shall be designated by
the railroad in writing and the switch
shall be lined and locked in that
position when not in use except when:
(1) The train dispatcher directs
otherwise with respect to the position of
a hand-operated main track switch and
the necessary protection is provided; or
(2) The hand-operated switch is left in
the charge of a crewmember of another
train, a switchtender, or a roadway
worker in charge.
(c) Additional job briefing
requirements for hand-operated main
track switches.
(1) Before a train or a train crew
leaves the location where any hand-
operated main track switch was
operated, all crewmembers shall have
verbal communication to confirm the
position of the switch.
(2) In the case of exclusive track
occupancy authority established under
§ 214.321, foul time under § 214.323, or
train coordination under § 214.325,
when a roadway worker qualified to
operate hand-operated main track
switches is granted permission by the
roadway worker in charge to occupy or
otherwise use the limits of the exclusive
track occupancy, such employee
receiving permission to occupy the
working limits shall report the position
of any such switches operated upon
expiration of the authority limits to the
roadway worker in charge or to a
designated intermediary employee who
shall convey the switch position to the
roadway worker in charge.
(d) Releasing Authority Limits. In non-
signaled territory, before an employee
releases the limits of a main track
authority and a hand-operated switch is
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VerDate Aug<31>2005 19:33 Feb 12, 2008 Jkt 214001
used to clear the main track, and, prior
to departing the switch’s location, the
following conditions are required:
(1) The employee releasing the limits,
after conducting a job briefing in
accordance with this subpart, shall
report to the train dispatcher that the
hand-operated main track switch has
been restored to its normal position and
locked, unless the train dispatcher
directs that the hand-operated main
track switch be left lined and locked in
the reverse position and the necessary
protection is provided;
(2) If the report of the switch position
is correct, the train dispatcher shall
repeat the reported switch position
information to the employee releasing
the limits and ask whether that is
correct; and
(3) The employee releasing the limits
shall then confirm to the train
dispatcher that this information is
correct.
§ 218.107 Additional operational
requirements for hand-operated crossover
switches.
(a) Each railroad shall adopt and
comply with an operating rule which
complies with the requirements of this
section. When any person including, but
not limited to, each railroad, railroad
officer, supervisor, and employee
violates any requirement of an operating
rule which complies with the
requirements of this section, that person
shall be considered to have violated the
requirements of this section.
(b) Hand-operated crossover switches,
generally. Both hand-operated switches
of a crossover shall be properly lined
before rolling and on-track
maintenance-of-way equipment begins a
crossover movement. A crossover
movement shall be completed before
either hand-operated crossover switch is
restored to normal position.
(c) Correspondence of hand-operated
crossover switches. Hand-operated
crossover switches shall be left in
corresponding position except when:
(1) Used to provide blue signal
protection under § 218.27 of this part; or
(2) Used for inaccessible track
protection under § 214.327 of this
chapter; or
(3) Performing maintenance, testing or
inspection of crossover switches in
traffic control system (TCS) territory; or
(4) One crew is using both tracks
connected by the crossover during
continuous switching operations.
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8503
§ 218.109 Hand-operated fixed derails.
(a)(1) Each railroad shall adopt and
comply with an operating rule which
complies with the requirements of this
section. When any person including, but
not limited to, each railroad, railroad
officer, supervisor, and employee
violates any requirement of an operating
rule which complies with the
requirements of this section, that person
shall be considered to have violated the
requirements of this section.
(2) Each railroad shall specify
minimum requirements necessary for an
adequate job briefing.
(b) General. (1) The normal position
of fixed derails is in the derailing
position except as provided in part 218,
subpart B of this chapter, or the
railroad’s operating rules or special
instructions.
(2) Fixed derails shall be kept in the
derailing position whether or not any
rolling and on-track maintenance-of-
way equipment is on the tracks they
protect, except as provided in paragraph
(b)(1) of this section or when changed to
permit movement.
(3) Movement must not be made over
a fixed derail in the derailing position.
(c) Employees operating or verifying
the position of a fixed derail shall:
(1) Conduct job briefings, before work
is begun, each time a work plan is
changed, and at completion of the work;
(2) Be qualified on the railroad’s
operating rules relating to the operation
of the derail;
(3) Be individually responsible for the
position of the derail in use;
(4) Determine that the target, if so
equipped, corresponds with the derail’s
position;
(5) Determine that the derail is
secured by:
(i) Placing the throw lever in the latch
stand, if so equipped;
(ii) Placing the lock or hook in the
hasp, if so equipped; and
(iii) Testing such latches, locks or
hooks; and
(6) Ensure that when not in use,
derails are locked, hooked, or latched in
the normal position if so equipped.
■ 12. Appendix A to part 218 is
amended by adding entries for subpart
F, consisting of §§ 218.95, 218.97,
218.99, 218.101, 218.103, 218.105,
218.107 and 218.109, to read as follows:
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APPENDIX A TO PART 218—SCHEDULE OF CIVIL PENALTIES

Section Violation Willful violation

* * * * * * *
Subpart F—Handling Equipment, Switches and Derails: 218.95 Instruction, Training, and Examination:
(a) Program ............................................................................................................................................... 9,500–12,500 13,000–16,000
(b) Records ............................................................................................................................................... 7,500 11,000
(c) Failure to timely or appropriately amend program after disapproval .................................................. 9,500–12,500 13,000–16,000
218.97 Good Faith Challenge Procedures:
(a) Employee Responsibility Failure ......................................................................................................... ............................ 5,000
(b) through (d) Failure to adopt or implement procedures ....................................................................... 7,500 ............................
218.99 Shoving or Pushing Movements:
(a) Failure to implement required operating rule ...................................................................................... 9,500 ............................
(b) Failure to conduct job briefing, use a qualified employee, or establish proper protection ................. 7,500–9,500 11,000–13,000
(c) Failure to observe equipment direction ............................................................................................... 9,500 13,000
(d) Failure to properly establish point protection within a remote control zone ....................................... 9,500 13,000
(e) Failure to abide by operational exception requirements .................................................................... 9,500 13,000
218.101 Leaving Equipment in the Clear:
(a) Failure to implement required operating rule ...................................................................................... 9,500 ............................
(b) Equipment left improperly fouling ....................................................................................................... 9,500 13,000
(c) Failure to implement procedures for identifying clearance points ...................................................... 9,500 13,000
218.103 Hand-operated switches, including crossover switches:
(a) Failure to implement required operating rule ...................................................................................... 9,500 ............................
(b) through (d) Railroad and employee failures ....................................................................................... 7,500 ............................
218.105 Additional operational requirements for hand-operated main track switches:
(a) Failure to implement required operating rule ...................................................................................... 9,500 ............................
(b) and (c) Railroad and employee failures .............................................................................................. 7,500 11,000
(d) Failure to properly release authority limits .......................................................................................... 12,500 ............................
218.107 Additional operational requirements for hand-operated crossover switches:
(a) Failure to implement required operating rule ...................................................................................... 9,500 ............................
(b) and (c) Railroad and employee failures .............................................................................................. 7,500 11,000
218.109 Hand-operated fixed derails:
(a) Failure to implement required operating rule ...................................................................................... 9,500 13,000
(b) and (c) Railroad and employee failures .............................................................................................. 7,500 11,000

■ 13. Appendix D to Part 218 is added
to read as follows:
Appendix D to Part 218—Requirements
and Considerations for Implementing
Technology Aided Point Protection
Introduction
This appendix provides further
explanation and requirements for exercising
the option to provide point protection with
the aid of technology as permitted in
§ 218.99(b)(3)(i). The regulation permits the
visual determination necessary to provide
point protection, i.e., a determination that the
track is clear, for a shoving or pushing
movement to ‘‘be made with the aid of
monitored cameras or other technological
means, provided that it and the procedures
for use provide an equivalent level of
protection to that of a direct visual
determination by a crewmember or other
qualified employee properly positioned to
make the observation as prescribed in this
section and appendix D to this part.’’ This
appendix addresses the general requirements
and considerations for all technology aided
point protection as well as specific additional
requirements for those operations involving
remote control operations at public highway-
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I. General Requirements and Considerations
A. Although railroading is now one of the
nation’s older forms of mechanized
transportation, equipment, components and
operations all have evolved through new and
improved technologies. Installing cameras in
yards so that a location could be remotely
monitored from somewhere else has become
a railroading reality as cameras have become
smaller, less expensive, and have increased
resolution. It is possible to set up these
cameras and monitors so that they provide at
least an equivalent level of safety to that of
an employee protecting the point. Part 218,
subpart F permits such an operation to
substitute for an employee’s direct visual
determination where the technology provides
an equivalent level of protection to that of a
direct visual determination. See
§ 218.99(b)(3)(i). Of course, to provide an
equivalent level of protection, an employee
needs to be properly qualified (see
§ 218.95(a)(2)) and the technology must work
as intended. Most malfunctions of the
technology should be detectable, and result
in abandoning the use of the technology for
determining point protection until the
malfunction can be corrected.
B. The substitution of such technology for
a direct visual determination is dependent on
many factors. Each situation will have its
(largely a necessity if viewing signals), the
width of the angle of view, the size and
location of the monitor, whether the
technology is for day-time use only, and
whether its use should be limited to fair
weather conditions. However, under all
circumstances, the monitor shall display
sufficient information to enable the viewer to
make a determination that the track ahead of
the shoving or pushing move is clear
pursuant to the definition of ‘‘track is clear’’
in § 218.93.
C. Each railroad that chooses to implement
such camera/monitor setups shall implement
attendant procedures and qualify each
employee who will be utilizing the
technology. Railroads shall ensure that any
monitored camera has sufficient resolution
and real time coverage to provide protection
equal to a direct visual determination. See
§ 218.99(b)(3)(i). Concerning attendant
procedures, one such procedure may be for
an employee viewing a monitor to
communicate updates to the locomotive
engineer or controlling crewmember at
appropriate intervals. FRA equates the
employee monitoring the camera to the
employee controlling the movement who
must not engage in any task unrelated to the
oversight of the movement; thus, each
railroad utilizing such cameras shall
implement attendant procedures limiting any
of the monitoring employee’s ancillary duties

rail grade crossings, private highway-rail
grade crossings outside the physical confines
of a railroad yard, pedestrian crossings
outside the physical confines of a railroad
yard, and yard Access Crossings.
own particular factual circumstances that
shall require consideration in determining
whether an equivalent level of safety can be
achieved. For instance, with regard to the
basic camera setup, a railroad shall consider
whether an operator must see in color
that might distract from the employee’s
ability to visually determine that the track is
clear and provide continuous communication
to the employee controlling the movement.
D. There is also the consideration of
whether the person viewing the monitor is

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 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations
the locomotive engineer, remote control
operator, other crewmember or other
qualified person, such as a yardmaster. If the
monitor is not being viewed by the operator
who is controlling the movement, then, there
shall be a clear understanding and channel
of communication between the operator and
the employee who is viewing the monitor—
as the latter would be protecting the
movement. Providing an equivalent level of
protection to that of a direct visual
determination requires a thorough job
briefing in which there is an understanding
of who is observing the movement, what is
the observer’s range of vision, at what
locomotive speed can the observation be
made and how information will be conveyed
to the operator/engineer, if that person is not
the one viewing the monitor.
E. There may be occasions when a railroad
finds it advantageous to use a non-
crewmember, e.g., a yardmaster, to provide
point protection, line switches, or check the
status of a derail for a remote control crew;
however, several potential problems may
result when non-crewmembers are used to
carry out some crewmember functions. Of
foremost concern is the great potential for an
error in communication or a
misunderstanding between the non-
crewmember and the crewmembers regarding
the activity or status of equipment. A
yardmaster who is occupied with his or her
other responsibilities might not give the task
the attention it deserves, or could be
distracted and give an incorrect answer to a
question by a crewmember (e.g., ‘‘is the move
lined?’’). The result could be that the task
does not get completed or there is an error
in task execution. Further, the crewmembers
might not have any alternative way of
determining that there is a problem with the
point protection provided by the non-
crewmember until it is too late.
Consequently, to the extent they will be
called upon to perform these duties, each
railroad shall include yardmasters and other
non-crewmembers in any operating rule
promulgated in accordance with
§ 218.99(b)(2).
II. Additional Requirements for Remote
Control Locomotive Operations at Highway-
Rail Grade Crossings, Pedestrian Crossings,
and Yard Access Crossings
A. In addition to the general requirements
and considerations for all technology aided
point protection in lieu of direct visual
determinations, additional requirements are
necessary to address concerns specific to the
use of camera/monitor setups for remote
control locomotive operations to protect the
point at highway-rail grade crossings,
pedestrian crossings, and yard access
crossings. Railroad operating rules currently
permit a movement to travel over a crossing
without the physical presence of a
crewmember if a crossing is equipped with
gates, if it can be determined that the gates
are in the fully lowered position, and if the
pwalker on PROD1PC71 with RULES3
crossing is clear of vehicles and pedestrians.
Remote control movements at highway-rail
grade crossings, pedestrian crossings, and
yard access crossings that utilize camera/
monitor setups pose a greater direct risk to
members of the general public than yard
VerDate Aug<31>2005 20:00 Feb 12, 2008 Jkt 214001
movements utilizing camera/monitor setups
to check whether a track is clear. In addition,
such setups can rapidly develop problems
with motor vehicles and pedestrians
unaccustomed to railroad operating rules and
procedures. For these reasons, additional
safeguards are necessary.
B. In consideration of the dangers posed by
the use of camera/monitor setups for remote
control locomotive operations at highway-rail
grade crossings, pedestrian crossings, and
yard access crossings, the following
procedures shall be complied with in order
to establish an equivalent means of safety in
accordance with § 218.99(b)(3)(i):
1. Before camera-assisted remote control
locomotive operations are permitted at
highway-rail grade crossings, pedestrian
crossings, and yard access crossings, a
Crossing Diagnostic Team shall evaluate the
crossing. The diagnostic team shall have
representatives from the railroad, FRA, the
State department of transportation (or
another State agency having jurisdiction over
the highway-rail grade crossing, pedestrian
crossing, or yard access crossing), and local
government authorities. The diagnostic team
shall evaluate the suitability of each crossing
for remote camera operations. Among the
factors it shall consider are the following: the
average annual daily traffic counts; the
number of highway lanes; highway speed
limits; the presence of adjacent signalized
highway intersections; the number of railroad
tracks; the angle of the roadway intersection;
the volume of school bus, transit bus,
emergency vehicle, commercial motor
vehicle, and hazardous materials traffic over
the crossing; the minimum remote control
locomotive operator sight distances of
roadway approaches to the crossing; and
other relevant factors that could affect the
safety of the crossing. The diagnostic team
shall also consider the appropriate number of
cameras and appropriate camera angles
needed to provide for the remote operation
of remote control locomotives over the
crossing. The diagnostic team shall agree to
a written diagnostic evaluation summary of
the factors considered and shall provide the
railroad with agreed upon parameters by
which the camera-assisted remote control
operation may continue in operation if the
factors required for suitability change; thus,
any change in the factors considered by the
diagnostic team outside of the acceptable
parameters shall require the railroad to
receive a revised evaluation approval from a
diagnostic team before continuing any such
operation. In addition, any of the Federal,
State, or local governmental authorities may
trigger review of a prior evaluation approval
at any time there is a question of the
suitability of the operation. It is possible that,
of the requirements listed below,
requirements numbered 2, 4, 5, and 6 would
be unnecessary at highway-rail grade
crossings or yard access crossings equipped
with approved supplemental safety devices
(see 49 CFR part 222, app. A) that prevent
motorists from driving around lowered gates;
under such circumstances, the diagnostic
team shall make such determinations. If a
Crossing Diagnostic Team, as described in
this paragraph, evaluated a crossing for the
factors described herein, prior to April 14,
PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 E:\FR\FM\13FER3.SGM
8505
2008, another diagnostic team evaluation is
not required to comply with this rule;
however, the requirements listed below shall
still apply to any such remotely controlled
movements over that crossing.
2. Camera-assisted remote control
locomotive operations shall only be
permitted at crossings equipped with
flashing lights, gates, and constant warning
time train detection systems where
appropriate, based on train speeds.
3. A crewmember or other qualified
employee shall not view the monitor in place
of the remote control operator, as is
permitted for other shoving or pushing
movements. See § 218.99(b)(3). For purposes
of remote control locomotive operations with
camera/monitor setups to protect the point at
highway-rail grade crossings, pedestrian
crossings, and yard access crossings, the
remote control operator controlling the
movement shall view the monitor during
such operations.
4. The cameras shall be arranged to give
the remote control locomotive operator
controlling the movement a view of the rail
approaches to the crossing from each
direction so that the operator can accurately
judge the end of the movement’s proximity
to the crossing.
5. The cameras shall be arranged to give
the remote control locomotive operator a
clear view to determine the speed and driver
behavior (e.g., driving erratically) of any
approaching motor vehicles.
6. Either the camera resolution shall be
sufficient to determine whether the flashing
lights and gates are working as intended or
the crossing shall be equipped with a remote
health monitoring system that is capable of
notifying the remote control locomotive
operator immediately if the flashing lights
and gates are not working as intended.
7. The railroad shall notify the Associate
Administrator for Safety in writing when this
type of protection has been installed and
activated at a crossing.
III. Conclusion
The technology used to aid point
protection will undoubtedly develop and
improve over time. FRA encourages the use
and development of this technology as is
evidenced by the option in this rule to utilize
such technology. Meanwhile, as a regulating
body, FRA cannot determine whether a new
technology to aid point protection provides
an equivalent level of protection to that of a
direct visual determination unless we are
made aware of the new technology.
Consequently, aside from the camera/monitor
setups described in this appendix, each
railroad that intends to implement a
technology used to aid point protection shall
notify the Associate Administrator for Safety
in writing of the technology to be used prior
to implementation.
Issued in Washington, DC, on January 29,
2008.
Joseph H. Boardman,
Administrator.
[FR Doc. E8–1933 Filed 2–12–08; 8:45 am]
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